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UNITED STATES SENTENCING COMMISSION

IMPLEMENTING REQUIREMENTS OF

THE PROTECT ACT

PUBLIC HEARING

Tuesday, September 23, 2003

2:05 p.m.

Commissioners Conference Room

Thurgood Marshall Judiciary Building

One Columbus Circle, N.E.

Suite 2-500, South Lobby

Washington, D.C. 20002-8002
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AGENDA

ITEM PAGE

Introductory Remarks--2:00 p.m.

 Judge Diana E. Murphy 3

 Chair, United States Sentencing Commission

Panel One

 The Hon. Marilyn L. Huff 4

 Judge, United States District Court

 for the Southern District of California

 Steven Hubachek 16

 Assistant Federal Public Defender

 for the Southern District of California

Panel Two

 The Hon. Lourdes G. Baird 44

 Judge, United States District Court

 for the Central District of California

 Maria E. Stratton 50

 Federal Public Defender

 for the Central District of California

Panel Three

 Paul K. Charlton 69

 United States Attorney for the District of Arizona

Panel Four

 Frank O. Bowman 97

 M. Dale Palmer Professor of Law

 Indiana University School of Law
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P R O C E E D I N G S

JUDGE MURPHY: We're very happy today to have

some help as we do our work on the PROTECT Act, and we

appreciate everybody coming. Our first panel is going to

give us some information on their early disposition

program that's in effect in the district of Southern

California.

And Chief Judge Marilyn Huff has come, and

despite--she came from San Diego and has to go right back

to San Francisco because she's on the Committee on

Judicial Resources and has been chairing the Subcommittee

on Judicial Statistics. But anyway, the committee is

meeting in San Francisco tomorrow. So we really

appreciate your coming.

And with you is Steven Hubachek. Am I torturing

your name?

MR. HUBACHEK: It's close enough.

[Laughter.]

JUDGE MURPHY: Who is an assistant federal

public defender in that district and, obviously, working
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with these--with the guidelines every day.

So without further ado, we'll sit down here. 

The chairs are so tight together, we have to all sit down

at the same time.

MR. JASO: It might be more dramatic to have a

big curtain like they have at the Supreme Court, and

everybody sort of comes out at the same time.

JUDGE MURPHY: We need a bigger room. Chief

Judge Huff, do you want to begin?

JUDGE HUFF: Good afternoon. Thank you for the

opportunity to provide information to the Sentencing

Commission on your very difficult task on implementing

the requirements of the PROTECT Act. Specifically, I'm

here to discuss fast track or early disposition programs.

I've submitted written testimony, and my

testimony could be summarized in three points. One, fast

track is intended to address the serious problem of court

congestion. Two, fast track was not judicially created. 

Rather, it is an exercise of traditional prosecutorial

discretion as to what cases to bring and what cases to
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dispose. And three, fast track programs benefit the

public by saving taxpayer money and substantially

reducing court congestion.

With that framework in mind, let me go to the

first issue, and that is the problem of congestion,

primarily on the Southwest border. I've provided the

dramatic statistics to you. In the most recent published

statistics from the Sentencing Commission, the Southern

District of California sentenced more guideline

defendants--4,213--than seven other circuits. That's

astounding.

But despite the high volume of cases, the

Southern District of California was the fastest in the

nation on criminal dispositions. In 2001, the rate was

four months. And in 2002, that time was cut down to 3.8

months. And that is shown in Exhibit 1.

The disposition time is primarily due to the

existence of two types of fast track

programs--one, a departure for drug cases and, two, an

early disposition program for criminal aliens. There is
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a variant that's discussed in my testimony about alien

smuggling cases, which is really a variant of early

disposition program.

To put the problem in context, the Southern

District of California includes San Diego, the seventh

largest city in the United States, that has severe large

metropolitan problems like other major metropolitan

areas. But also the district shares an approximate

200-mile border with Mexico and has six ports of entry.

When I started as a federal judge, there were

only three ports of entry. It's now expanded to six

ports of entry. Two of the ports of entry are the

busiest land ports of entry in the world. And to

dramatize the area, this is Exhibit 1, a frequent exhibit

in many of our criminal cases. This is what happens at

San Ysidro, a day in the life of the Southern District.

And interestingly, I received from the

Department of Homeland Security the statistics on the

number of immigration inspections in our district. Last

year, 2002, there were 87 million immigration inspections
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at our six ports of entry. Additionally, on maritime

cases, under the law, the cases are required to be

brought to the nearest port, and the Southern District of

California happens to be the nearest port for cases that

arise in--outside of South America. And so, we've also

had two of the record numbers of seizures--12 tons and 13

tons of cocaine--also brought to our district.

To sum up on court congestion, there is a high

likelihood of criminal felony cases that are likely to be

brought in the Southern District of California and a

reduced number of federal district judges that are

available to handle this congestion.

On to the second point, the existence of the

fast track. Historically, the fast track was created by

U.S. attorneys to address the issue of court congestion. 

At one point in time, we frankly did not have the space

to house the criminal defendants. We had no pretrial

detention facilities sufficient to house the number of

defendants that were being apprehended and brought into

our district.
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And so, five successive U.S. attorneys have

established and monitored a fast track or early

disposition program. It was not created by the judges. 

We are judicial officers. We do not make the law. We

simply administer the cases that are brought to us.

And then, finally, the third point. The fast

track program actually has benefited the public by saving

resources and relieving port congestion.

Ultimately, the Court of Appeals in United

States v. Estrada-Plata said, "In light of the overall

crime problem in the Southern District of California, the

government chose to allow Section 1326(b)

defendants"--that's the immigration

cases--"the opportunity to plead to a lesser offense if

done so at the earliest stage of the case. Like the

district court, we find absolutely nothing wrong (and,

quite frankly, a great deal right) with such a practice. 

The policy benefits the government and the court system

by relieving congestion."

How does it do that? You know under acceptance
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of responsibility, the government can grant two

levels--or the court can grant two levels for acceptance

of responsibility. And now, under the PROTECT Act, a

third level if the government makes a motion. But a

defendant could litigate the case up till the day of

trial and still receive two levels for acceptance of

responsibility.

Under a fast track or early disposition program,

it encourages those defendants who are ultimately going

to plead to plead early. By pleading early, it saves

grand jury time. A vast majority of the criminal

immigration cases proceed by way of information, not by

indictment, saving the grand jurors from having to meet

and assemble.

It saves interpreter time. We have a

significant problem with defendants being housed at

various places. And so, by encouraging an earlier

disposition, the interpreter time is reduced.

It saves federal defender time and the payments

to Criminal Justice Act panel attorneys by having less
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motions litigated before the court. It also saves

immigration judge time because frequently, as a condition

of a fast track or early disposition deal, the defendant

agrees to be deported or removed and agrees not to

reopen, challenge, or otherwise litigate the immigration

case.

It also saves magistrate judge time. It saves

district judge time. And because there is a waiver of

appeal in the majority of these cases, it also saves

appellate time.

Overall, the participants in the Southern

District of California rate these programs as

exceptionally successful. I've provided the statistics

on the criminal alien fast track program. And remember,

this is the program adopted by the U.S. attorney.

But for our immigration cases, approximately

1,800 are charged with violating Title 8, United States

Code Section 1326. Those with serious violent felonies,

the crimes of violence, are prosecuted to the fullest

extent required by law. The rest are offered an
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opportunity to plead to two counts of violating Section

1325, one misdemeanor and one felony, and then under

guideline application, under sentencing guideline 5G1.1,

the statutory maximum becomes the guideline sentence. 

And that's a 30-month sentence.

The conditions are the defendant waive

indictment, file no motions, plead guilty within 60 days

of arraignment, stipulate to removal after completion of

the sentence, agree to immediate sentencing, and waive

appeal and collateral attack.

Then there are certain exceptions, which are

outlined in my testimony, for those defendants who have

lesser than 30 months. Typically, this is for recidivist

defendants who have many, many, many immigration

contacts--for example, 50 voluntary returns--and the

government wants to then go further and have a more

substantial penalty for the next violation. The parties

do rate this program as exceptionally successful.

The second fast track program includes a

two-level departure under sentencing guideline 5K2.0 for
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the early resolution of border drug cases, and the

conditions are similar. But typically, there is not a

waiver of a pre-sentence report.

Now in both of these programs, the judge is free

to accept or reject the plea bargain that is recommended

by the parties. The judge can refuse to take even the

statutory maximum. And indeed, that is frequently the

case if the judge thinks that this is an unfair or unjust

sentence result.

And then, as I said, there is a related alien

smuggling program, where defendants who have been charged

with a mandatory minimum term for commercial advantage

and private financial gain are offered the opportunity to

avoid the mandatory minimum term if they plead. This

involves no departure. So basically, our only departure

case is the criminal drug border bust type of case.

As I said, the fast track program began as a

means of coping with an increasing criminal caseload in

the district and a lack of other resources. At a time

where Border Patrol and other law enforcement was
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increasing, the judicial officers in our district were

decreasing. We sadly had three deaths in our district

and some other health-related issues that actually

reduced our available judicial resources.

Additionally, we do have many challenges. 

Housing the pretrial criminal defendants. I got the

current statistics, and they are currently housed in 11

different facilities. There was a time in our district

where we were housing people in Seattle, in Kern County,

in Bakersfield, over in Texas. And these are pretrial

people that then have to be brought to the district.

Our United States marshals spent $46 million

last year to house, feed, and provide medical care for

the pretrial detainees. If the length of time in our

district can be reduced, then their budget is reduced. 

If the defendants elect to pursue their constitutional

right and take these cases to trial, then the defendants

will remain longer in our district at a substantial cost

to the United States marshal, both in resources and in

dollars because they have to contract with a number of
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nonfederal facilities in order to house the defendants.

Currently, last week, the district had 2,038

custodial defendants. Now remember, we only currently

have seven judges that are in the criminal draw. If all

of those defendants elected to go to trial, it would be

extremely difficult with speedy trial constraints to have

those defendants processed in a time as required by law. 

So in sum, these circumstances do warrant a flexible fast

track or early disposition program as authorized by law.

In conclusion, finally, in legislation intended

to reduce departures, Congress did recognize the benefit

to the taxpayer, to the public, to the system by

authorizing a fast track or early disposition program

under limited circumstances. Our district clearly meets

those limited circumstances that are authorized. And by

adopting in your commentary, policy statements, or

guideline amendments, matters that would institutionalize

our fast track or early disposition program, if warranted

by law, you would be meeting your mandate under the

PROTECT Act to substantially reduce departures.
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Thank you for the opportunity to provide this

insight to you.

JUDGE MURPHY: I should have said that we also

invited the United States attorney from the district, and

he's not here. But I wanted everybody to know that we

did invite him.

And one other person I wanted to recognize,

before we turn to Mr. Hubachek, is Judge Lake. Judge Sim

Lake is here, who is the chair of the Criminal Law

Committee of the Judicial Conference and with whom we

work very closely. And the PROTECT Act has given us lots

to do, lots of conferring. So we're happy that you could

be here at least for part of the hearing.

Now let's hear from you.

MR. HUBACHEK: Thank you very much.

I don't have a tremendous amount to add to Chief

Judge Huff's description of the working of the program

and the participants' reaction to the fast track program

in the Southern District. As she indicated, all the

participants are willing participants in it and believe
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that it does confer a value on both the criminal

defendants and the justice system.

I would add that I actually have been around

longer than Chief Judge Huff. And when I arrived in

1989, the vast majority of the cases that she's been

discussing this morning were prosecuted as misdemeanors. 

The illegal entry cases were almost exclusively

prosecuted as misdemeanors, and there were huge numbers

of them.

And when the fast track program came into

effect, I think it's 1994, that that changed the focus to

a felony prosecution as opposed to misdemeanor. Now,

obviously, there were fewer felonies. But still very

large numbers of felonies, as remains the case today.

So I think that the program, in addition to all

the savings that Judge Huff has indicated, was also

intended to show a different prosecutorial preference,

which was to prosecute more serious offenders on a felony

basis as opposed to a misdemeanor.

The other point that I'd like to make,
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historically, is that these--the disposition of these

cases, particularly the 1326s, are very sensitive to

variations in the fast track program. And in 1997, the

standard deal was a two-year deal as opposed to the

30-month deal now, and that was based on a plea to a

single count of 1326(a), which was believed at the time

to have a maximum sentence of two years.

Then when Almendarez-Torres was decided, then

that understanding was abandoned. And so, the U.S.

attorney's office experimented with some different

incentives to plead guilty, and the result was that

trials shot substantially up. And I don't have

statistics with me, but I can tell you that our office

had probably our biggest year of trials at that point in

time.

So the defendants who are charged with 1326s are

very sensitive to variations in the agreement. They're a

difficult population for criminal defense lawyers to work

with in terms of cultural divides and issues of trust. 

And the fact that many of these people have been
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prosecuted in the state system before, and they have a

difficult time comprehending that they'll do more time on

their federal immigration offense than they might have on

their underlying offense.

So I think that changes in the fast track

agreement would, I think, have a substantial effect on

the district. Now as Judge Huff mentioned, with respect

to the 1326 cases, that does not involve departures under

5G1.1. It's really a guideline sentence that's imposed. 

And I understand that that may create in your statistics

some appearance of disparity.

But one issue that I'd like to bring up is that

people who don't get the fast track offer, and they're

identified in Chief Judge Huff's written testimony, we

call them the super-aggs. And these are the individuals

that have the very serious prior convictions, the very

violent offenses, the very serious drug offenses, rapes,

child-involved offenses. Now those people are not

offered the fast track program at all. They get a

guideline offer with no additional departure.
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So with respect to that population and everyone

else in the country who has that type of prior

conviction, I wouldn't expect there to be any particular

disparity at all. And I think that brings up the notion

that the 2L1.2 guideline seems, to us anyway, to apply

very broadly in terms of the 16-level enhancement. And I

think that--one of your goals, I understand, is to try to

reduce departures.

And I think that the Southern District model

devised by the U.S. attorney's office, not by the court

or by the defense bar, really does identify the most

serious offenders. And I think that an application of

the 16-level bump to that group of people, as opposed to

the much more broad version that exists now, I think

would reduce a lot of the departure pressure that exists.

And just to give you an example, I had a case

with a defendant who did not choose to accept the fast

track bargain. And he had a prior conviction for a

robbery, which turned out to be an altercation with

another guy in which he took that gentleman's pager. So
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he pled guilty for that and ended up getting a two-year

sentence after a probation violation.

And the district court judge sentencing him was

confronted with the fact that he was looking at a

16-level upward adjustment based upon a pager, whereas

the guideline also applies to murders, rapes, even acts

of terrorism now. So I think that there is substantial

room in the 16-level enhancement to reduce the departure

pressure by modifications. And I would throw out the

Southern District prosecutorial model of prioritizing

among the defendants as a good way to do that.

Another way that I would suggest to do that is

with respect to length of sentence. Frequently, the

length of sentence is a good proxy for how serious the

prior crime is, and I know that currently the 2L1.2

16-level enhancement for crimes of violence doesn't have

any requirement of any particular sentence. So I would

urge the commission to consider adopting some sort of

sentence requirement.

I also would suggest that 13 months, which is
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the cutoff for the drug offenses--if you have 13 months,

you get a 16 level as opposed to the 12--is also pretty

low, too. Because virtually everybody in our district

who gets a sentence, I'd say, of less than five

years--and I can say this because I know Judge Huff will

correct me if I'm wrong. But I think that virtually

everybody who gets a sentence of, say, 13 to 30 months in

our district is probably going to be a courier.

So when you use the 13-month cutoff level,

you're really identifying a large number of people who

are not among the most culpable drug defendants. Plus,

you know, the sentences in the state of California are

also varied. So we see a lot of disparity in terms of

the actual worth of the prior conviction, in terms of

whether you get the 16-level bump up or not.

Otherwise, though, in the 1326 cases in our

district in the fast track cases, there are no departures

at all. There is no aberrant behavior. There is

no--we're not even allowed to ask for any departures

based upon the terms of the plea agreement. So there
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really isn't any departure issue at all.

The defendants, as Judge Huff indicated, that do

get departures in the criminal context are the

individuals who commit what we call the "border busts,"

which are primarily marijuana cases. And those

individuals do get the benefit of an agreement of a

minus-two reduction for pleading guilty quickly and under

the terms of the agreement.

And I guess, you know, the first answer to that

would be that you're getting a lot of convictions in

exchange for a little bit of disparity. But I also think

that the program is justified in terms of the departures

because of the people who actually commit those offenses.

By and large, the people who come across the

border with drugs in our district are--have very little

criminal record. A lot of them have no record at all. 

Most of them have some sort of immigration status, which

they're certain to lose as a result of this prosecution,

and a lot of them are extremely sympathetic individuals.

So they are people who would otherwise would be
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very good candidates for departure. In a lot of cases,

when you get the minus-two for the fast track, that tends

to suppress, particularly the lower level or lower

quantity cases, any other departure. So the existence of

the fast track program in and of itself does, I think,

reduce the number of other departures that would be

granted in these drug cases.

Now I also have suggested that the commission

might also consider issues in terms of the criminal

history departures. I understand that there are a lot of

criminal history departures, and I've set out in our

written testimony some of the issues that we see in that

area involving over-representation of misdemeanors. We

frequently see people who have misdemeanor offenses that

can get them five, six, seven, eight points total and

including as much as five points on one misdemeanor

conviction.

So to the extent that the commission is

considering limiting departures in that area at all, I

would strongly urge that the commission do that in the
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context of reforming the actual calculation of the

criminal history points. Because there still remain

significant disparities, when driving on a suspended

license can get you five points and a serious felony

conviction may result in only three.

I'd be happy to answer any questions that the

commission has.

JUDGE MURPHY: Judge Castillo?

JUDGE CASTILLO: First of all, I want to thank

both of you for all the work you do in your district. 

It's overwhelming just thinking of it, as a judge sitting

in Chicago, the number of cases that you have.

I have a couple of questions. As I understand

the alien fast track program that you have, it does not

involve departures in any sense?

JUDGE HUFF: Correct.

JUDGE CASTILLO: Is it possible that in the rush

to put together these judgment and commitment orders that

somehow they're being recorded as departures?

JUDGE HUFF: I believe--I think that might be--I
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talked to our probation officer about that, and I believe

what he said was that the Sentencing Commission treats

those as departures. Even though they are not

departures, they're being treated as departures.

And they are really not departure cases. 

They're statutory maximum cases. So maybe we, together,

should look at that and make sure that our statistics are

being recorded appropriately.

JUDGE CASTILLO: I agree with you because I had

the same concern as to whether or not we're getting

accurate numbers. Because I mean Congress will take a

look at your numbers and see that your district has an

overall downward departure rate somewhere in the high 50

percent. I believe that's the number. I could be wrong

about that. And questions will be asked that can lead to

legislation.

But let me just ask you, the two-level drug

downward departure, it is limited to two levels, right?

JUDGE HUFF: Well, the--it's limited to two

levels. There was a time that the U.S. attorney offered
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a deal, which I consider a high low. We will give you

two levels. You may ask for as many levels as you want,

and we'll submit it to the court. But in exchange for

what I call a mini max. There is a waiver of appeal

cases over.

That was an offer that was done in a period of

time. I think currently it's no longer the policy. But

there was a period of time with at least three U.S.

attorneys where there was this what I call mini max. 

They give you two. You ask for as many, and case is

done. And then there's a waiver of appeal.

JUDGE CASTILLO: Would it surprise you now, I

have this number, if someone told you your downward

departure rate for 2001 was something like 50 percent? 

That would sound like it's not accurate?

JUDGE HUFF: Hmm, I'd have to go look at the

numbers. That--

JUDGE CASTILLO: What--and this is the last

question, and then I'll be quiet. What about aberrant

behavior? It seems to me that there are a lot of
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aberrant behavior downward departures in your district,

or at least you have a high statistical number.

Does that come up as one of these two-level drug

fast track departures, or is there some other explanation

for the use of that particular downward departure?

JUDGE HUFF: That's in the old system. And

remember, of the downward departures, what number is

really not there, which is the appropriate case inquiry,

is how many of these departures were asked for by the

government. And as I said, there was a period in time

where the government's deal was we give you two. You ask

for any authorized by law, and that's what we'll submit

to the court.

So aberrant behavior was--is a recognized

departure. And so, on occasion, some of the judges were

granting aberrant behavior. And even that none of the

cases were appealed. So, obviously, if the U.S.

attorney's office felt that there was something wrong in

the sentence that was imposed by the district court, they

could have had the remedy of appeal, except that they
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bargained that away in the plea agreement in order to

move the cases out of the system for the reasons that I

stated.

JUDGE CASTILLO: Both sides would waive their

right to appeal?

JUDGE HUFF: Both sides waived their right to

appeal. And there was often an exception if it was--if

the judge imposed a sentence not greater than the high

end of the guideline range recommended by the government,

then there was a waiver of appeal.

MR. HUBACHEK: I would say--I haven't looked at

the statistics, but I would be very surprised if the rate

was 50 percent. It's very rare--I don't think I've ever

heard in our district of a 1326 defendant getting an

aberrant behavior departure. The 1325, 1324 alien

smuggling cases, I think it's much more rare because that

tends to be people with a lot of history.

So to the extent that there is aberrant behavior

departures, I would expect those to come in the context

of the border busts, which, as a whole, I would say tend
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to be the least culpable individuals that come through

our court in terms of--I mean, their conduct may be

culpable, but I mean in terms of their records. They

likely have no criminal record. If they do have some

criminal record, it's usually not that serious. They

tend to have the tremendous family circumstances and what

not.

I would expect that group to probably be

represented the best in terms of granting such

departures. But I would be very surprised if the overall

rate was 50 percent.

JUDGE MURPHY: Judge Sessions?

JUDGE SESSIONS: Can I just follow up with the

aberrant behavior? Because 36 percent of all aberrant

departures across the country are from your district.

JUDGE HUFF: I see.

JUDGE SESSIONS: Which is a large--

JUDGE HUFF: That's a large number.

JUDGE SESSIONS: That would be fair to say

that's a large percentage. Am I correct in interpreting
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what you said that back in 2001, there was this upper and

lower and that the judges would be using aberrant

behavior to go below the two-level reduction, but that no

longer is the case? So basically, the use of aberrant

behavior is substantially reduced from what it was in

2001? Is that fair to say?

JUDGE HUFF: I would imagine that it probably

continued over to 2002, but certainly with a change in

prosecutorial policies. We had U.S. attorneys that

didn't object and, in fact, at sentencing would say,

"Judge, the defense attorney is making some very good

points. I'll just submit to your discretion."

And did not overtly object or often would,

indeed, agree with the position of the defense. So I

think now the answer is there are fewer departures. But

probably--2002, probably some of those continued over.

JUDGE SESSIONS: Is this, the fast track system

with the smuggling of drugs, is this 11(e)(1)(c) pleas so

that basically--

JUDGE HUFF: Nonbinding.
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JUDGE SESSIONS: Nonbinding?

JUDGE HUFF: They're all nonbinding. They're

all nonbinding. There are--in fact, I can think of none

that I've had that are binding pleas.

JUDGE SESSIONS: But a defendant is not

permitted to raise a separate motion for downward

departure for other grounds if one goes through the fast

track system. Is that the way it works here?

MR. HUBACHEK: The defendants still make the

request. I think that my recollection of what Chief

Judge Huff is talking about was there used to be an

agreement where the prosecution would stand silent. The

agreement might say, "We agree to recommend minus-two,

and we agree not to oppose your additional request for

another minus-two based upon aberrant behavior," or

whatever combination of circumstances, whatever the

departure may happen to have been.

The plea agreement now is much more standardized

and never or almost never contains that kind of

terminology at this point. And again, these cases would
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only come up where you had the defendants in

these--usually the smaller marijuana cases, where the

individuals would be very sympathetic, and some

prosecutors would exercise their discretion in favor of

those individuals. It's just not happening now with a

much more standardized plea agreement.

JUDGE SESSIONS: All right. But still, a

defendant has the right to ask for a departure. And I

assume this is above and beyond the role adjustment. You

must have role adjustments for couriers.

MR. HUBACHEK: Right. Yes. Typically speaking,

there is a recommendation for a minus-two role reduction

based upon the person's courier status and their other

lack of connection. But that particular adjustment

almost never exceeds two. It's very rare for it ever to

go above that.

JUDGE MURPHY: Commissioner O'Neill?

MR. O'NEILL: Yes. I was just looking--I just

pulled out the statistics for the Southern District of

California, just to sort of get them right. And I've got
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a couple sort of questions about this.

Right now, I mean, by far--not by far, but the

largest number of cases that are involving prison listed

by primary offense is immigration. The second was drug

trafficking, and they

dwarf--those two categories together dwarf everything

else that happens in the Southern District of California.

JUDGE HUFF: Correct.

MR. O'NEILL: And interestingly enough, for

downward departures, other downward departures, about

50.5 percent of all cases receive a downward departure, 8

percent receive a substantial assistance departure, and

41.3 percent are actually sentenced within the guideline

range. And then an amazing 0.2 percent receive upward

departures.

I guess a couple questions that I would have. 

One is one of the things that I think is going on,

especially with respect to substantial assistance

departures, is that there isn't sufficient room for

judges and for the government to be able to rely upon
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departures. And my question, would it be helpful to you

if there were another category of departures, departures

that were listed as initiated by the government, that

weren't precisely substantial assistance departures but

were some other category?

Do you think that would be helpful to you, just

in means of categorizing, you know, the basis for making

the departure?

JUDGE HUFF: I think it would be helpful for

those who were interpreting the statistics for the system

as a whole to be able to track down how many of these are

judicially driven versus how many of these are driven by

the prosecution under traditional prosecutorial

discretion. So having a category saying "initiated by

the government" on the statement of reasons form would be

helpful, in my view.

MR. O'NEILL: Have you had the chance either to

sit down either formally or informally with your U.S.

attorney or who ever is in charge of these things to sort

of decide how these are going to be handled and whether
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or not ultimately the department is going to approve,

which I assume it will, sort of the fast track program

down there?

I mean, clearly, what's driving all of this is

the fact that you just have a lot of cases. And even if

you have a lot of INS agents and even if you have a lot

of prosecutors, you don't have a lot of judges. And so,

it creates an enormous bottleneck. And you don't even

have to have any statistical training to figure that out

on the basis of these statistics.

Have people sort of sat down and talked about

how you're going to--how this is going to be handled in

the future? Have you heard anything from the U.S.

attorney? Unfortunately, we don't have the U.S. attorney

here. We can ask, but--

JUDGE HUFF: We have a good working relationship

with our U.S. attorney. And so, interestingly, our

judges still take the view that we are judicial officers. 

We're not in charge of their plea bargaining processes. 

And under Rule 11, we're precluded from getting involved
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in plea bargaining. And so, we really do not think that

it is necessarily our role to tell the U.S. attorney what

cases to bring or not to bring or to plead or not to

plead.

But there was, as demonstrated, a period in our

time when, due to unique changes in the

law--Almendarez-Torres dramatically affected the way the

cases were handled in our district--we just didn't have

places to put the defendants. And then, collectively,

this fast track program was developed, but it really was

not developed by the judges. It was developed by the

U.S. attorneys and successive U.S. attorneys who have

gone from that point forward.

And so, we do have a good working relationship. 

But really, it's a matter for the Department of Justice. 

It's--they decide what cases to bring. They decide what

cases to charge. And then we do the best that we can

with the limited resources that we have.

We had 37 visiting judges in one year. It was

exceptionally difficult because the way that our
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resources are given, they're given in the judiciary based

on authorized judges, not based on the caseload, in large

measure.

And so, our whole district is suffering from

lack of overall resources because we only had eight

authorized judges. It's now gone up to 13, but none of

the five are onboard yet. We're hoping that Congress

will pass through the nominees as soon as possible.

MR. O'NEILL: So part of what we really need to

do then is we need to be able to delineate which

departures are entirely sort of

judicially--sort of originate with the judiciary and

which of these departures really are coming from the

government as part of the means to make sure that the

case flow actually occurs.

So I guess part of what the commission's

responsibility in this is is just sort of smoking out and

making sure that we're reporting to Congress as

accurately as possible what the source of the individual

departures are. And right now, it strikes me that
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perhaps we're not catching that as well as we might.

JUDGE HUFF: And I do--I would like us to check

to see if those 1,800 criminal alien cases are being

reported as departure cases. If so, that would skew our

statistics because they're not really departures. But I

do think, looking forward, since your mandate is to

reduce departures, the judges follow the law.

Under the PROTECT Act, the standard of review on

appeal has changed. Now the government is objecting. 

Before, they did not object. And so, I think it's a new

era, and the judges will respond appropriately.

It's an adversarial system. If the parties are

coming to you and saying, "Here is the deal," you can

accept it or reject it. The judges decide to accept it

or reject it. And indeed, in many cases, the judges were

rejecting some of the pleas if they thought that they

were too lenient.

JUDGE MURPHY: We've got time for one more

question for this panel. Commissioner Steer had his hand

up earlier.
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MR. STEER: Well, actually, your last comment

was directed at the question that I had, which was how

often does it happen that a judge might look at a plea

agreement and reject it either because--and did I--I

thought your earlier comment suggested they might

sometimes reject it because they thought it was--that the

30-month cap was too severe. Is that--

JUDGE HUFF: Too lenient.

MR. STEER: Too lenient?

JUDGE HUFF: Too lenient for--

MR. STEER: Oh, okay. Okay.

JUDGE HUFF: Too lenient for somebody facing a

guideline range of 77 to 96 months who's been in our

district before.

We have one judge who handled 600 cases last

year. He's seen the same defendants maybe for the second

or third time. And because he's seeing them for the

second or third time, if the government is now coming to

him with a 30-month cap, he will say, "No, I am not

taking this agreement." Because he thinks that it's too
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lenient. And that's his option.

JUDGE HINOJOSA: But how can the judge say no if

that's the only charge before him or her? I mean--

JUDGE HUFF: He just says he's a judicial

officer, and he's a senior judge. And so, he is a

volunteer.

[Laughter.]

JUDGE HUFF: And so, he feels as a volunteer, as

a senior judge donating his services to the court, he

doesn't have to participate. It then goes back to the

draw, and then another judge will have to handle it. It

is the statutory--

JUDGE HINOJOSA: But there's no means for the

judge to reject that because the only charge is--or is

there? When the only charge is a criminal information

that caps you at, I take it the 30-month cap is 24 months

and 6 months for the misdemeanor?

JUDGE HUFF: Correct.

JUDGE HINOJOSA: Which you can run concurrent if

you want to.
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JUDGE HUFF: But under the guidelines, it should

be run consecutive.

JUDGE HINOJOSA: Right. But under the statute,

if you wanted to, you could run them concurrent?

JUDGE HUFF: Yes.

JUDGE HINOJOSA: And so, if that's the only

charge, and it's strictly the prosecution's decision to

bring that charge, what basis--legal basis is for the

judge to say, especially if you don't have a pre-sentence

report where you don't know the prior background, how

would you know that the range would be 77 to 96?

JUDGE HUFF: We do have a criminal rap sheet

that lists it out, and we require the prosecutors to come

up with a criminal history that will outline at the time

of the taking of the plea the guideline range that the

defendant would be facing if there was no statutory

guideline.

JUDGE HINOJOSA: Most of these have pled to the

criminal information?

JUDGE HUFF: Correct.
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JUDGE HINOJOSA: And there's no indictment?

JUDGE HUFF: Correct.

JUDGE HINOJOSA: And so, there's nothing for the

judge to reject other than just step in and say, "I'm

going to become part of this discussion, and therefore

I'm not taking it," or--

MR. HUBACHEK: It may be doctrinally vague, but

it's very clear when it happens.

[Laughter.]

JUDGE MURPHY: I think on that note we'll have

to end with this panel. You can see how interested we

are in what you've had to say. And again, I want to

thank you very much for coming.

I know Chief Judge Huff had volunteered to

testify by teleconference, but you're really great live.

JUDGE HUFF: Oh, thank you so much. I'm going

to have to leave or I would really love to hear the

remainder of the panels. Thank you so much.

JUDGE MURPHY: Well, we'll move a little farther

north now to the Central District of California, which is
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still pretty far south. And Judge Lourdes Baird has had

a lot of experience in sentencing. She was a United

States attorney and on the Attorney General's Advisory

Council and some advisory committee for the Sentencing

Commission.

And Maria Stratton is the federal public

defender now in the Central District of California, but

she was in that office for a long time before she became

head of it and also worked in the attorney

general's--state attorney general's office on serious

crimes.

So without more out of me, we'll turn to you,

Judge Baird.

JUDGE BAIRD: Hi. I would like to give you a

little bit of background about our district and the

problem. Our district is the Central District of

California. It's just immediately to the north of the

Southern District that you just heard from.

However, the southernmost portion of our Central

District is only 60 miles from the
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U.S.-Mexico border. Our district also has--I can

remember from the 1990 census, we had 16 million people

in our district alone. I think it's probably up to about

18 or so now. So it's very different than most other

districts. In fact, it is the largest district by far as

far as population goes.

Because of our proximity to the border, we do

have in this district a high percentage of illegal aliens

and criminal illegal aliens. Historically, for example,

from 1990 to 1992, when I was U.S. attorney, there wasn't

very much in the way of these kinds of prosecutions.

And the reason being that there was just so much

else going on in the district. If there's any sort of a

crime that anyone wants to mention, I would venture to

say that in the Central District of California, there is

more of it than anywhere else. So it was a question of

priorities.

Now that didn't mean that the problem didn't

exist, because the problem did exist. And I can recall

very vividly when I was U.S. attorney that local law
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enforcement authorities and local governments were very

unhappy with us because they had this problem of criminal

aliens returning back and committing crimes and being

deported and returning back. And the federal government

was seen as just doing nothing about it. So it was

always a conflict.

Now let's move forward. At that time and up

until our fast track program began, which was

approximately two years ago, the prosecutions were

brought under 1326, which is the illegal re-entry after

deportation. The typical defendant had many

deportations, certainly more than one--two, oftentimes

three--and their criminal records were substantial. So

that was typically the sort of case that was brought. 

And I'm just saying this now as judge from 1992 up until

our program.

1325s, which are the simple illegal re-entry

that we've been talking about here with the six-month

misdemeanor the first count and the

24-month maximum felony as the second count, were rarely
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brought. I'm sure that Ms. Stratton can tell us more

about it, but I don't remember ever seeing one before.

So the problem in the district, as I mentioned,

existed. It was exacerbated, and I do believe that the

U.S. attorney's office then decided that they really

wished to do something about it. In my written

testimony, I did provide the letter from the then-acting

U.S. attorney, who was John Gordon, explaining the

program.

And the program does not, as I mentioned,

involve departures. The program involves an information

in which on two counts of 1325--that is a simple illegal

entry, evading inspection--was brought, and the max was

30 months. Six months for count one, 24 months for count

two. They're all binding agreements, Rule 11(e)(1)(c). 

And as I think--was it Judge Hinojosa?--you mentioned

earlier, yes, I have had situations. I do ask for the

criminal printout, the rap sheet, so to speak, to see

what they have.

And sometimes, not very often, but occasionally,
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I've seen what I thought was a rather extensive rap sheet

that maybe this person didn't deserve it. And it came to

my realization that if I said no, just say no, that means

I try the case. And I finish trying the case, and let's

assume the person is guilty, and what do I sentence them

to? Thirty months. That's the max.

So it is clearly, in my view, an exercise of

prosecutorial discretion in order to address the problem

in the district. It does save a great deal of time.

I have mentioned to you, I believe, in my

written testimony that the number of the 1325 illegal

re-entry convictions have gone up about 20 times over

that program. The 1326s have not disappeared at all, but

they have diminished by one third. And those are

reserved for the

severely--the very bad cases, the individual who has a

very severe record of deportations, prior deportations

and convictions.

Now we have not probably--I believe the total

number of cases has gone up to maybe from about 17 or
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maybe 40 or 50 to about 250 a year. So it isn't the

numbers that we--that you heard about in the prior panel.

The benefit of it is, I think, the fact that

there are prosecutions, that there is something being

done in the community. The federal government is being

receptive to the community and the law enforcement

authorities in the community. And we are able to take

care of them quickly.

As I also described in my written testimony, the

plea agreements encompass waivers of indictment. They

encompass waiver of statute of limitations. Very often

the prior deportations are outside of the statute of

limitations. There is a waiver of venue because the

illegal re-entry was clearly at the border. So the venue

is in Southern District of California. There is a waiver

of appeal on both sides, and also we have a compacted

hearing.

At the time of arraignment, this is all done. 

It is already arranged. So the individual is arraigned

on the information. His guilty plea is taken, and he is
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sentenced. So it's all one proceeding. And the

defendant also does waive the right to have a

pre-sentence report prepared prior to sentencing.

I think that the benefit is pretty obvious when

I say that only there were that many prosecutions that

can come through, and it does not take on an awful lot of

resources by all

parties--that is, the prosecutors, the defense attorneys,

the court, as well as the probation office.

Now I think I've pretty well summarized what it

is, but I would hope that you would have some questions

of both of us when Ms. Stratton is finished.

MS. STRATTON: I want to thank you for the

invitation to appear today. I just want to start out by

saying that neither Judge Huff or Judge Baird or myself

or Steve are running for governor of California.

[Laughter.]

MR. : There's still time.

MS. STRATTON: Although I may be recalled from

my position after you hear what I have to say today
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because I'm--if I were writing on a blank slate, I would

argue to you that there is no principled reason to write

fast tracks into the sentencing guidelines, and there are

many principled reasons for leaving them out.

And I speak from my experience in the district

where for years--I've been the federal defender for 10

years. For the majority of that time, we did not have a

fast track, and as Judge Baird said, and now we do. And

what's the difference? Well, besides just the number of

people that are prosecuted, the main difference is that

with no fast track, the U.S. attorney allocated its

resources.

And as Judge Baird said, at that point, they

went after what our former U.S. attorney called "the

worst of the worst." They went after the predators. 

They went after people with multiple deportations,

multiple serious felony convictions, people who were

deported, came back, and reoffended, not just came back

to be with their families, but reoffended. People who

came here as adults voluntarily, people who had families
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and connections to Mexico.

In other words, the prosecution was really aimed

at protecting the community against people who came here

to victimize the community. It was truly crime and

punishment. It was what the criminal justice system is

all about, really.

And critical to all of this during the non-fast

track years was another very important thing from the

defense standpoint, and that is we got full discovery. 

We got an opportunity to explore our clients' defenses.

And when all was said and done, the judges had

the comfort, I think--I've never been a judge, but I have

to believe this--the comfort of sentencing someone with

no doubt about their guilt, with no doubt about what kind

of representation they got, with no doubt about whether

all the defenses were fully explored and put to rest. 

Whether it was a trial or whether it was a plea, it was

done and over with.

And so, when it came down to sentencing, it was

truly an issue of sentencing defendants and under the
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guidelines figuring out how to sentence similarly

situated defendants and how to differentiate

between--among those defendants who were differently

situated and therefore should get a different sentence

under the guidelines.

It was pure. It's not pure anymore with the

fast track. The predators are not the only people being

put away. It allows more people on our district to be

prosecuted who probably wouldn't have been prosecuted

before.

Now some people in this room and in society are

going to say, "Well, that's okay. Let's prosecute as

many people as we can as long as we have the goods on

them." Let's go with that. That's okay. I can go with

that. I'm okay with that. But the difference now is

under the fast track is that these defendants are

prosecuted without exploring their defenses because there

is no discovery. We're lucky if we get an A file.

They're prosecuted on crimes for which they

cannot always help their counsel figure out defenses. 
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Because for 1326 cases, the defenses are very technical. 

They're very technical. It's almost like habeas corpus. 

It's challenging deportation.

It's having to have a knowledge of immigration

law, which, as you know, is constantly changing, and

being up to date on changes in immigration law, being

able to listen and get access to a deportation tape in

order to be able to challenge a deportation, knowing

whether somebody maybe has derivative citizenship.

We have had clients prosecuted for 1326 who

ended up being citizens, and they didn't even know it. 

And if it hadn't been for defense counsel and the

prosecutors cooperating and giving us the discovery we

needed, we never would have found that out. And it had a

profound change in their lives to find out that now

they're citizens and they don't have to worry about going

back to a country they didn't know in the first place.

They often don't have their own exculpatory

evidence to offer in their own defense because most of

the evidence, given the technicality of the defenses, is
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already in the possession of the government. It's not

like they can hand over the alibi or hand over the

telephone record that you get--that's going to exonerate

them. Usually it's evidence that's--it's in the

possession of the government. For example, deportation

tapes or A files or that type of thing, which they don't

see with these fast tracks.

But most important, I think, for all

participants in this process--prosecutors, defense

attorneys, and judges--is that when all is said and done,

I think that the judges do not sentence now with a

certainty that all defenses have been explored. They do

not sentence with a certainty that the person standing

before them is actually guilty, legally, of the crime--of

the acts that they did that made it a crime.

That's very troubling. And for a defense

attorney, it's very troubling to get the feeling that

you're just processing people. When you go in to talk to

your client, you're telling your client, "Well, I don't

really know if you're guilty. I can't really say if
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you're guilty or not under the law. I don't know if they

can prove it beyond a reasonable doubt. But if you don't

take this deal, you're looking at 77 months instead of 30

months. And so, what do you want to do?"

And then you have to stand up in front of the

judge at the Rule 11 hearing. And when the judge asks

you, "Have you advised your client of all his or her

defenses?" Really, what you have to say is, "Well, no." 

I don't have any discovery. I have no idea. But my

client wants to do it, and as we all know, the client's

in charge of the decision to plead.

The other thing that happens with this is that

it's the great equalizer. In our district, it's a Rule

11(e)(1)(c) binding plea to 30 months. You take it or

leave it. So the haggling that normally goes on or the

plea bargaining that normally goes on between the

prosecutor and the defense occurs with a decision to get

the deal.

Once the deal is struck, as Judge Baird said, I

mean the judge either takes it or leaves it. But
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judge--it's charge bargaining, so you're going to end up

with the 30 months anyway. But what happens is those

defendants who maybe should get more than 30 months

aren't getting 30 months, and those defendants who

shouldn't get 30 months are getting 30 months.

It's not uniformity in sentencing. It's not

what the guidelines were designed to do, which was

uniformity in sentencing based on similarly situated

defendants, not similar allocation of resources among

U.S. attorney's office, which is really what's driving

this is how the U.S. attorney's office decides to

allocate its resources.

That's not what the Sentencing Commission is all

about, and that's why I'm here to urge you, maybe too

passionately, that putting this fast track departure in

the guidelines corrupts the process. It contradicts the

idea of uniformity in sentencing based on similarly

situated defendants.

And I guess with that, I'll stop. If you have

any questions?
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JUDGE BAIRD: May I make one clarification here?

MS. STRATTON: You are running for governor?

JUDGE BAIRD: Yes. I might.

[Laughter.]

JUDGE BAIRD: And bear in mind that the

defendants who are offered these "fast track pleas" are

defendants that would be eligible for a 1326. That is a

defendant who the U.S. attorney believes has been

previously been deported and has returned. And also has

a prior criminal record, has returned and has a prior

criminal record.

They are pleading to a simple illegal entry. 

The plea, the factual basis is very simple. We'll look

at the first date. We'll say, "Mr. Gutierrez, go to

January 1998. Did you cross the border?" "Yes." 

"Where?" "Well, outside of San Ysidro." "How did you

cross?" "Under the fence" or "over the hill." "And did

you evade inspection?" "Yes." "Did you do that because

you wished to evade inspection?" "Yes."

Factual basis is there. So I don't think that
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necessarily we have defendants who are pleading to a

charge that they are not guilty of. Now I'll step back.

JUDGE MURPHY: Did you want to have the first

chance, Judge Hinojosa?

JUDGE HINOJOSA: I don't think there's much more

I can say.

This sort of the misdemeanor and the felony, I

guess what it does leave out is Ms. Stratton's point of

you're treating everybody exactly the same. And as we

well know, those of us who handle these cases on a

regular basis, there are people who are guilty of this

offense, and then there are people who are guilty of it. 

And it varies on their prior criminal history.

And fast track leaves all those questions open,

and what you're caught with is the 30 months and not much

information for the judge to make a determination as to

should this be higher or lower?

JUDGE BAIRD: Absolutely correct.

JUDGE HINOJOSA: And it relies on information,

would you not say, that the INS, which I'm not here to
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say that they don't do their job. But that their files

are in such condition that as a sitting judge, doesn't it

sometimes happen on a somewhat regular basis that the

records are not necessarily correct with regards to

whether there was a formal deportation or a removal.

And when you don't have the fast track program,

there's an opportunity to check that.

JUDGE BAIRD: Under the 1326, which would be a

much heavier penalty.

JUDGE HINOJOSA: Right.

JUDGE MURPHY: Commissioner Horowitz?

MR. HOROWITZ: I want to actually touch upon the

plea issue that you raised because one of the things that

I have noticed when you look at the sentencing statistics

for the last 10 years, you notice a creeping up by about

half a percent a year pretty steadily the plea rate,

guilty plea rate. So that if you looked about 10 years

ago, the plea rate was roughly 90--low 90s. Today it's

96.5 percent roughly across the country.

And I noted from looking at the 2001 statistic
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book that the plea rate for the Southern District of

California is 98.6 percent, and for the Central District,

I believe it was 97.4 or so--2 and change.

And it does lead me to wonder whether that's a

problem that goes--or that's an issue that you raised

that goes beyond just the fast track, and if the

guidelines create too strong an incentive to plea or too

great an incentive to plea and create the danger that you

talked about beyond just the fast track programs?

I'm wondering if beyond the fast track issue

there are those concerns, and what accounts for this

incremental increase in the guilty plea rate?

MS. STRATTON: Well, I'll tell you that one of

the biggest incentives to plead for a client is that

given the very, very broad definition of aggravated

felony for the 16-point bump-up, almost everybody is an

aggravated felony. Even people that just have

misdemeanors on their record, those can now be considered

aggravated felonies, at least in the Ninth Circuit.

So that's a dramatic increase from 8 to 24, and
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I don't really know of any other guideline for any other

offense that has this giant increase like this for one

thing. Even the loss calculations that go up in fraud

cases go up kind of incrementally as the monetary loss

goes up. But this is just a major bump.

So that's a big, given that practically

everybody is deemed an aggravated felon nowadays, the

client's looking--there's a big change from 30 to 77

months, and that's a big incentive to run with the plea. 

So if there were some way to maybe be further refine what

aggravated felonies are or lessen that bump in some way,

that might make people more willing to, you know, go to

trial.

JUDGE BAIRD: Just aside from the fast track,

which I think does--I'm assuming that our statistics--I

really haven't looked at them. But I'm assuming that our

statistics for pleas might have gone up some percentage

points since August of 2001, when this program came in. 

But prior to that, I do believe that the guilty plea rate

has gone up.
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I find that disputes now really goes to

sentencing. There are an awful lot of fraud cases that

are prosecuted in our district, and then that loss issue

becomes kind of our little mini trial. So I don't know

what--perhaps defense counsel or perhaps Maria would

know--believe that they can probably maybe go in and do

their argument at the time of sentencing.

JUDGE MURPHY: Commissioner Steer?

MR. STEER: Yes. Ms. Stratton, I, to a certain

extent, share your wish that we didn't have to have fast

track departures. I think they're sort of fundamentally

inconsistent with what the Sentencing Reform Act is all

about. But I think under the PROTECT Act, we have little

choice but to make that an identified policy statement in

the manual for properly identified districts to use,

those identified by the decisions of the U.S. attorney

and the attorney general.

I guess one question for us is whether or not we

should fetter that policy statement in any way with any

words to the court. If I had my druthers, one way I
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might want to fetter it is to say to the court, you ought

not to grant this departure repetitively. You shouldn't

grant it for more than once. You know, if the defendant

gets this break, he shouldn't get it again.

Judge Baird, I guess at this point, we don't

even know whether the Central District of California is

going to be so designated. But do you think if those

words, words like that were written--and I have no idea

whether my colleagues would want to write them--would

judges think well or not so well of that sort of thing?

JUDGE BAIRD: Well, Commissioner, I think that

that is the discretion of the prosecutor. We don't

prosecute. We don't charge. We receive what the

prosecutor charges. That's prosecutorial discretion. It

has been exercised from the beginning of certainly ever

since I became an assistant U.S. attorney, longer than

I'd like to acknowledge.

But that's their business. They're doing it. 

And I'm assuming that they know what they're doing. And

we receive the case.
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So if they choose to do a charge bargaining,

which is what this fast track really is, our discretion

is limited to a maximum sentence that is provided by the

legislature. So I don't know that we can--

MR. STEER: I understand that. But I'm assuming

that we are talking about a future world in which the

districts that are identified as fast track districts

will use this departure mechanism to achieve a lower

sentence that will help to move the freight. So if--and

we don't know whether that will be the type of situation

that will exist in the Central District or whether it

might just continue to be a charge bargaining mechanism.

I understand the difficulties about the charge

bargaining, the dynamics there that the judge can't take

over the case and prosecute the case. I'm talking about,

you know, if we were dealing with a departure mechanism,

would judges be inclined to not grant this departure

successively?

JUDGE BAIRD: Well, first of all, I can't speak

for all the judges certainly. So all I
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can--is speak for myself. I frankly don't like the fast

track. I'm never satisfied that I'm doing the right

thing. I know that the individuals are guilty of the

charge that they're pleading to. And by looking at the

rap sheets that I do see and I count out the convictions,

I'm pretty sure that if they were to be prosecuted

exactly for what they might qualify for, they would,

indeed, be qualifying for far more than 30 months.

So I just get the sense that maybe in the long

run on the deportations, they're not necessarily

deportations, they're prior re-entries. So I just--I

don't like the fast track. And if it were now put to us

to decide whether we wanted to do a downward departure at

the request of the government, oftentimes that sort of

thing is going on and in not that formal fashion.

For example, there will be a plea bargain in

which the plea has been arranged, and this is not under

Rule 11(e)(1)(c)--these are

nonbinding--in which the defense counsel and the

prosecutor have decided that the charge maybe lower or
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that the individual should not get an aggravating role,

would not qualify for an aggravating role. So I do have

situations like that where I make a decision as to

whether to honor the agreement between the parties or

not, and I have that discretion to do so.

So I guess maybe what you're telling me is the

sort of thing that does exist in a nonformal basis all

the time, and I would just use my own discretion. I

tend, frankly, if the prosecution wants to do it and it

doesn't seem like it's unfair or if it seems like it

would result in what I think is an appropriate sentence,

I would generally go along with them. If I don't, I

won't.

JUDGE MURPHY: I think we are going to have to

move on to the next--we have to give the prosecution a

chance to talk about these matters. Obviously, there's a

lot of interest in trying to understand just what's going

on. And I'm so glad somebody said the emperor has no

clothes, too. I mean, so that we really think about it.

Thank you so much.
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JUDGE SESSIONS: Can I just ask a very brief

question?

JUDGE MURPHY: Okay. But I've already calmed

two down over here. So--

JUDGE SESSIONS: Oh, so can I ask it or--

[Laughter.]

JUDGE MURPHY: I'll never give you a chance

again if it isn't just a teeny one.

JUDGE SESSIONS: In these situations where you

have the plea agreements which suggest--that don't apply

aggravating role, assume that that's, first of all, not

fast track. And second, when you're making that

decision, do you have a pre-sentence report at that

point?

JUDGE BAIRD: Yes, we do.

JUDGE SESSIONS: Or is this all stipulation and

just you decide?

JUDGE BAIRD: This would be--since it's not fast

track, we would have a pre-sentence report. And very

often, frankly, I believe that the probation office
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generally tends to support what might be in the plea

agreement.

JUDGE SESSIONS: That's all I have.

JUDGE MURPHY: Thank you so much. Very good. 

Thank you so much.

Originally, we had the prosecution and the law

professor world on the same panel, but their

presentations aren't quite on the same thing. So we've

separated them.

So we'll turn now to Paul Charlton, who is the

United States attorney for the District of Arizona and

who, of course, is very familiar with these problems.

MR. CHARLTON: Thank you, Your Honor . Judge

Murphy and Commissioners, I thank the United States

Sentencing Commission for the opportunity to appear

before you once again on behalf of the Department of

Justice.

My testimony will respond to your request for

the department's view on early disposition programs and

their impact on federal sentencing policy. Early
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disposition or so-called fast track programs developed in

the mid 1990s in response to a dramatic increase in the

number of immigration cases handled by federal

prosecutions on the Southwest border.

The programs were designed to process these

cases through the federal criminal justice system as

quickly as possible and thus enhance public safety and

minimize the burden on the courts, prosecutors, defense

counsel, the U.S. marshals, and others while at the same

time ensuring the defendants were given a fair

opportunity to contest charges that they believed

unfounded.

It is undeniable that fast track programs have

allowed the federal courts to handle significant

increases in prosecutions of criminal aliens who have

entered the United States illegally after deportation as

well as other types of high-volume cases. We believe

these programs have had a major impact in the communities

where they exist, reducing crime and increasing public

safety, particularly along the Southwest border.
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These programs have enjoyed strong support in

law enforcement, the judiciary, and the public at large. 

Nonetheless, we recognize that there is reason for some

concern about these programs, both in terms of their

expansion beyond immigration and other types of cases

that create an extraordinary burden on the Southwest

border and relation to sentencing disparities that result

from them.

If I may, Your Honor, I will briefly describe

some of the fast track programs that we've enacted in the

District of Arizona. Early disposition programs in the

District of Arizona. Both our Tucson and Phoenix offices

currently have fast track programs to enable prosecution

of cases that otherwise would be declined because of

limited prosecutorial resources, both on state and

federal levels.

Over the past decade, prosecutorial and judicial

resources have simply not kept pace with the increased

federal law enforcement efforts along the border with

Mexico. The border between Arizona and Mexico is, for
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the most part, sparsely populated desert terrain. In

many areas, the border between the two countries consists

of a two-strand barbed wire.

To enhance security along the border in the mid

1990s, the government began substantially increasing the

number of Border Patrol agents in the area. For example,

between 1995 and 2002, the number of agents in the Border

Patrol's Tucson sector alone increased 229 percent from

561 agents to the current number of approximately 1,844. 

This increase in agents, not surprisingly, led to a

substantial increase in arrests.

In fiscal year 2002, for example, Border Patrol

agents in the Tucson area alone--that doesn't include the

whole 370-mile border with Mexico, but approximately 300

miles of our

border--arrested 333,648 aliens illegally in the United

States. As a result of improved computerized fingerprint

technology, the Border Patrol is now able to determine in

a timely manner the immigration and criminal records of

many of these individuals apprehended.
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Given the entire federal system handles

approximately 60,000 guideline cases per year and our

district approximately 3,000, we obviously cannot

prosecute every individual arrested. Between 1997 and

2002, the number of felony cases prosecuted by the Tucson

division of the U.S. attorney's office increased 118

percent from 1,080 cases to 2,356 cases. Last year

alone, from 2001 to 2002, the number of felony cases

increased 21.9 percent to--from 1,932 to 2,356.

In order to deal with this problem, we explored

a number of possible solutions. First, we attempted to

get an increase in resources. We've obtained some, and

that's addressed the problem to some degree, but not to

the degree we would like or necessarily need.

We explored with our local county attorney

colleagues the possibility of their enforcing some of the

local drug or narcotic problems. But they, too, are

limited in resources and unable to assist us in a

significant way.

We considered accepting fewer cases for
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prosecution by changing our prosecution guidelines in

such a way as to make it more difficult to bring cases to

our office for prosecution. But there is a balance

there, and we need to be careful about which cases, which

viable prosecutions we are willing to turn away. It

would be irresponsible and a dereliction of our duty to

decline large numbers of cases that are uniquely federal.

We therefore tried to find ways to more

efficiently prosecute the large numbers of cases we

received. Currently, we have fast track programs

covering, first, illegal re-entry after deportation

offenses; second, alien smuggling; third, offenses

involving 100 kilograms of marijuana or less; and other

drug cases. Although the details vary for each program,

they are designed to encourage a defendant to plead

guilty before significant prosecutorial resources are

expended in the case.

I'm going to go over each program very briefly,

if I may? The fast track program for illegal re-entry is

pursuant to 8 U.S.C. Section 1326, is the only exception
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is that the assistant U.S. attorney assigned to the case

may elect not to make a fast track plea offer if the

defendant's criminal history category is too high in that

assistant's opinion.

To qualify for the fast track plea, the

defendant must agree to plead guilty within 15 days of

arraignment. And in our district, we do indict these

cases so that there is an indictment for the judge to

review. The defendant has to agree to waive the right to

appeal. And our standard plea agreements, including

those plea agreements that are part of the fast track

program, include as well a waiver of collateral issues

such as 2255s.

In exchange, the government agrees to a

reduction of the defendant's sentencing range, and the

amount of the reduction depends on the defendant's

offense level. And in my submitted testimony, you'll see

how those reductions take place.

Your Honor, I believe there was a question

earlier about pre-sentence reports. There are
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pre-sentence reports prepared for the judge to review in

our district. In fiscal year 2002, the Tucson division

prosecuted about 1,150 cases through this program. 

Approximately 1,325 cases we expect will be prosecuted

under this program through the end of this fiscal year.

Alien smuggling fast track. Alien smuggling

cases are particularly time-consuming to prosecute cases

because it is necessary for us to detain and hold two

material witnesses so as to assist in the prosecution. 

Under local rules and court orders, videotaped

depositions of these material witnesses, which are, of

course, intended to preserve their testimony for trial,

must be conducted within 20 business days after the

defendant's arrest.

After the depositions, the material witnesses

are deported. Thus, the prosecutor, in essence, has to

be prepared to conduct a significant portion of the

defendant's trial within 20 business days of the

defendant's arrest. To address this problem, the alien

smuggling fast track program covers all alien smuggling
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charges except cases in which an alien being smuggled was

physically injured or placed in extreme danger.

To qualify for the fast track plea offer, the

defendant must first agree to plead guilty prior to the

time set for the videotaped deposition. As I said, 20

days from the date of arrest. And two, waive the right

to appeal. In exchange, the government agrees to a

reduction in the defendant's sentencing range.

If the defendant's crime is punishable under

1324(a)(1)(b)(1), transporting or harboring illegal

aliens, the defendant is offered a sentencing cap at the

low end of the guideline range. If the defendant's crime

is punishable under (b)(2), that is bringing aliens into

the country for financial gain--which, as you know,

carries a mandatory three-year sentence--the defendant is

offered a plea to a charge that does not have a mandatory

minimum sentence. And in such cases, there is an

agreed-upon sentencing range at an offense level of 14.

In fiscal year 2002, again just looking at our

Tucson office, we prosecuted 250 cases through this
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program. We expect to prosecute 300 such cases through

the end of this fiscal year.

Marijuana fast track program. This fast track

program covers cases involving between 20 and 100

kilograms of marijuana in which the defendant does not

have a prior drug conviction nor possess a firearm. 

Cases involving less than 20 kilograms of marijuana and

cases involving marijuana backpackers--that is

individuals who carry the marijuana across

individually--are generally treated as misdemeanors.

To qualify for the fast track plea offer, the

defendant must agree to plead guilty before the

government has to respond to any motions and agree to

waive the right to trial. In exchange, the government

agrees to a reduction in the defendant's sentencing

range, as I've set out in my prepared testimony. These

sentencing caps are at the low end of the applicable

guideline range as you see them in the testimony that

I've already submitted.

In fiscal year 2002, again just looking at the
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Tucson office, we prosecuted 360 cases through this

program, and we expect to do 390 cases in this fiscal

year.

Finally, the last program which we have is the

fast track program which covers other drug cases. This

fast track program covers drug cases other than marijuana

cases. Whether to offer this fast track is made on a

case-by-case basis considering the facts of the case and

the current caseload of the assistant United States

attorney assigned to the case.

Currently, because of caseload problems within

our district, this fast track plea offer is, in most

cases, offered to the defendant who does not have a prior

conviction or a firearm. To qualify for this fast track

program, the defendant has to agree to plead before the

government has to respond to any motions and agree to

waive the right to appeal.

In exchange, the government agrees to an

additional two-level reduction in the defendant's

sentencing range. In fiscal year 2002, we prosecuted
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approximately 175 cases under this program. We expect to

do 200 cases before the end of this fiscal year.

The past several U.S. attorneys for the District

of Arizona all came to the same conclusion regarding fast

track programs. Rather than decline viable cases

involving defendants who commit serious crimes, they

would offer fast track pleas to allow the office to

prosecute more cases than would otherwise be possible. 

We believe this decision, despite resulting in a higher

nonsubstantial assistance downward departure rate under

the sentencing guidelines, was the appropriate one to

address the needs of the communities along the border.

Without the fast track programs, the number of

viable cases that would need to be declined would

increase substantially. While such a result might

improve the guideline departure statistics, it would

produce a more lawless atmosphere along the border as

criminals realize that their chances of getting

prosecuted are very small, even if caught.

I'm willing to answer any questions, Your Honor,
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that the commission may have.

JUDGE MURPHY: Commissioner O'Neill?

MR. O'NEILL: First of all, thank you for

agreeing to come and participate in this panel. This is

obviously important to hear from the government and

especially to hear from the field, you know, U.S.

attorneys who are actually working out in the field.

Let me just ask you this. Do you feel that

there has been an abuse of the use of downward departures

in your district?

MR. CHARLTON: No.

MR. O'NEILL: Are you aware of the fact that

there is a 62.8 percent departure rate in that district?

MR. CHARLTON: I'm aware that we have a high

percentage. I'm not certain what the exact number is,

and what it is the--again how it is you dissolve or break

apart those statistics in terms of the ones that we ask

for as opposed to the ones the judges do sua sponte, I

don't know.

But I can tell you that I own and am responsible
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for a great number of downward departures that take place

within our district. I think it is an unfair criticism

to point the finger at our judges and say that they are

the ones responsible for a high number of downward

departures in that district when you look at the number

of fast track cases that we prosecute.

And our cases, unlike charge bargaining cases,

are cases where we invite and ask the court to consider a

downward departure because of the fast track program. 

And I think I need to take responsibility for that great

number.

Now because I say that that's not a high enough

number, I don't know exactly how you break out that

number. And so, if I were to look at the statistics and

somebody were to say, "Well, Paul, that's what you said

today." And somebody were to show me tomorrow this is

how many of the judges do sua sponte, then maybe I'd have

a different sense of it.

But I can tell you from a working knowledge,

from having been there since 1991, as it relates to our
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bench, I don't think there is a disproportionately high

number of downward departures that take place sua sponte. 

There are those downward departures that take place sua

sponte, and we have, from time to time, taken those

judges up on appeal when we thought it was inappropriate

for the judge to downward depart on his or her own.

MR. O'NEILL: You feel that's the appropriate

mechanism when a judge has made a departure that you feel

uncomfortable with or that you feel isn't supported by

the law? That that's the appropriate mechanism then, to

appeal the judge's decision?

MR. CHARLTON: I do.

MR. O'NEILL: That's--I mean, to me, that's very

enlightening testimony in terms of how your district

works. And I appreciate your candor.

MR. CHARLTON: I don't know that that's candor,

it's just--you've caused me concern.

JUDGE MURPHY: It sounds a little bit like the

joke that they tell about how people don't like Congress,

but my congressman is okay. And your judges are okay.
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MR. CHARLTON: We have a very good working

relationship with the judiciary. I have a great deal of

respect for those judges, and that would be, I think,

inappropriate for me to say that they were individuals

who were exercising poor judgment. When they exercise

poor judgment, we take them up on appeal, in our opinion.

Now, again, if we were to be shown statistics

that you could break out in some way that would show that

there is some sort of extraordinarily high number of

aberrant downward departures that those judges did, I may

reconsider that. But I can tell you just as a practicing

prosecutor there since 1991, those times when they take

it up--did I do something wrong?

JUDGE MURPHY: Judge Castillo? Everybody wants

to comment, ask questions.

MR. CHARLTON: Yes, Judge?

JUDGE MURPHY: Judge Castillo?

JUDGE CASTILLO: I want to tell you I completely

agree with your remarks. I have met your judges in your

district. In particular, you only have two judges in the
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Tucson division, right?

MR. CHARLTON: No, sir. Judge--

JUDGE CASTILLO: You're up to what?

MR. CHARLTON: I think we may be up to the big

number of four by now.

JUDGE CASTILLO: Okay. So each of them now have

like 500 criminal cases.

MR. CHARLTON: An extraordinary caseload, as do

the prosecutors in our office. And as do the defense

attorneys, as does everyone. It is an extraordinary

burden.

JUDGE CASTILLO: It's an impossible task,

talking to them. And the last time I talked to them,

they each had 1,000 criminal cases each. And while we

can talk about a 0.2 variation in the plea rate has a

dramatic effect on their lives. So I appreciate the

work.

Well, let me get to a couple of questions. As I

understand, all of your fast track programs involve

downward departures, right?
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MR. CHARLTON: Well, the vast majority of them

do. We also have flip-flop cases, and we didn't--you're

familiar with those, Judge?

JUDGE MURPHY: No, but I want to be.

[Laughter.]

MR. CHARLTON: The vast majority--in fact, my

understanding the reason I was invited here today was to

talk to you about downward departure fast track cases. 

And we have other programs, and I briefly touched upon

them, that relate to, for example, backpackers--those

individuals who will carry on with a nylon cord, say, 10

pounds of marijuana or 10 kilos of marijuana across the

line.

We may, from time to time, charge those

individuals with both a felony offense and a misdemeanor

offense. It's a charge bargaining fast track program, if

you will, in which they are offered the opportunity to

quickly plead guilty to the misdemeanor in lieu of going

to trial on the felony offense.

JUDGE CASTILLO: So that would not involve a
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downward departure, if they took the misdemeanor plea?

MR. CHARLTON: That's correct. It doesn't

involve the--it would involve the guidelines as opposed

in the end because there would be a guideline application

to the misdemeanor plea, but the cap due to the statute

would be 12 months.

JUDGE CASTILLO: If your downward departure rate

was 60 percent, it's your belief that it's driven by the

fast track programs?

MR. CHARLTON: It's my belief that the vast

majority of downward departures that take place in our

district are driven by the fast track programs, yes. How

it is you break out that 60 percent--20, 40, I'm not

certain.

JUDGE CASTILLO: Okay.

MR. CHARLTON: But the vast majority of those

downward departures I'm certain are ones that we own--

JUDGE CASTILLO: Now I don't know--

MR. CHARLTON: --and are responsible for.

JUDGE CASTILLO: --if you can answer this
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question, but do you know what categories of downward

departures are being used?

For example, just like in the Southern District

of California, aberrant behavior, which we kind of

slipped and we're starting to get into, seems to be one

of the categories as well as just general mitigating

circumstances. Is that your knowledge that those type of

categories are being used to accomplish the downward

departure that you need to get to for the fast track

program?

MR. CHARLTON: No, sir. Your Honor, I believe

that the fast track program reflects in the written plea

agreements 5K2.0.

JUDGE CASTILLO: Okay.

MR. CHARLTON: Now I'm not quite so fluent in

the sentencing guidelines are you are, sir, but I believe

that that is different than an aberrant departure,

aberrant behavior downward departure.

JUDGE CASTILLO: That's correct.

MR. CHARLTON: And so, I would say that those
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incidents in which we appeal judges who make downward

departure decisions are most often those times when the

judge has found aberrant behavior and we disagree.

JUDGE CASTILLO: Mm-hmm.

MR. CHARLTON: Those times when we are in

agreement, pursuant to a plea agreement, a fast track

program, the downward departure is made pursuant to

5K2.0.

JUDGE MURPHY: Judge Sessions and then Judge

Hinojosa.

JUDGE SESSIONS: Maybe you can't answer this. 

If you can't, I mean--

MR. CHARLTON: I'll do my best.

JUDGE SESSIONS: --don't tell me. I mean,

you've heard the testimony about the Southern District of

California, a dramatically different kind of fast track

program. I can tell you from being in New Mexico,

dramatically different fast track program.

Is there any effort going on to try to approach

this in the same kind of way? Any kind of--well, any way
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of all the districts getting together, and this is the

way we want to do it?

MR. CHARLTON: We have, Your Honor, visited

often. We U.S. attorneys who reside on the border, in an

attempt to see if there wasn't some way on the front

end--that is, on our charging decisions and how it is we

prosecute these

cases--could find some uniformity in the way it is that

we deal with these cases. We have not advanced so far as

to determine how it is that we deal with these cases on

the back end.

But if I could just go forward and tell you why

it is I think that would be a difficult challenge. If

you even consider trying to develop a consistent charging

program in the Southern District of California and try to

divine one or put one together in Arizona that would be

similar, the needs, the geography, the economies are so

different that it is difficult to find--and our resources

are so different--that it is difficult to find a

consistent way to charge individuals.
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And I think we've just talked about differences

between Los Angeles and San Diego. It's just as true

between San Diego and Phoenix. So it's difficult to do.

JUDGE SESSIONS: I mean, the reason I asked the

question is let's say the Southern District of Texas

versus Western District of Texas. You might have one

that has a fast track program and another which doesn't,

which means people are treated pretty significantly

differently.

And I wondered if, oh, wait. Maybe you've

answered the question. Maybe there's just no way that

you could get them all together to be able

to--at least in regard to the charges that are being

filed and the way the charging process is being

conducted, you know, a similar kind of approach is

developed.

MR. CHARLTON: You're right. It's certainly a

worthy goal and a worthy objective. But the hurdles are

such given different resource allocations along the

border, not only among prosecution and law enforcement,
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but among the judiciary, that it's very difficult to find

a consistent program throughout the length of the

Southwest border.

JUDGE MURPHY: Judge Hinojosa?

JUDGE HINOJOSA: Is there any message that the

commission or anyone else should possibly get with the

institution of fast track programs, especially in the

immigration field, which is obviously a Southwest border

area, crime that is more prevalent there than any other

place?

In the sense that Ms. Stratton's point of view

that maybe the guidelines are too high and because you

wouldn't be entering into a fast track, one would think,

as a prosecutor for a certain amount of time if you

didn't feel that was enough punishment and enough

incapacitation period with regards to a particular type

of defendant.

Is there any of these--do you have any opinion

as to whether any of these fast track programs are driven

by the view that this is enough time and this is
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sufficient? Because you're a prosecutor, so one would

think that you would want to get the sentence that would

be appropriate for a case. Not just because of lack of

resources, but because that's appropriate in the case.

MR. CHARLTON: Well, I hope that's always our

ambition, and I hope that's the way we conduct ourselves. 

And I can tell you that just as Ms. Stratton spoke in

terms of what it would be with a blank piece of paper in

a perfect world, I would have enough prosecutors, enough

investigators, there would be enough pre-sentence report

writers, there would be enough judges to deal with all

333,000 individuals who illegally enter the United States

in fiscal year--and not just in the Tucson area, in the

District of Arizona for fiscal year 2002.

That's not the world I live in. So then I have

to decide of those cases, which ones can I effectively

prosecute so as to act as a deterrent? If you were to

say tomorrow there is no longer going to be a fast track

system, you are only allowed to apply the guidelines as

they are currently written, then the number of
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prosecutions that would be available to me would be just

dramatically, dramatically reduced.

And I believe, therefore, that what little

deterrent there is now--and I don't believe that there is

a sufficient deterrent, given the resources we are

allocated--that what little deterrent there is now would

so greatly be reduced that that number, 333,000, would

spike. And you'd see a significant number of individuals

now crossing through Arizona because they would realize

that the chances of our being prosecuted have been

greatly diminished.

JUDGE HINOJOSA: But I guess the question is,

are you satisfied that the amount of time, that the

sentence that's being handed down under your fast track

program is sufficient as opposed to a higher guideline

sentence?

MR. CHARLTON: Oh, well, that's a difficult one

for me to answer. And I suspect it would depend on

different cases. There are certainly cases that involve

aggravated felons where I would tell you that they
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probably are individuals deserving of a more severe

sentence.

But again, given the resources which we all have

to deal with, there are times when I have to accept that

someone's going to get a reduced sentence so as to be

able to prosecute more individuals so as to increase the

deterrent effect on the border. And it's a balance.

JUDGE MURPHY: Commissioner Horowitz?

MR. HOROWITZ: I want to jump back into the plea

trial issue, since I noticed that in this district that

in 2001, the plea rate was 99.2 percent, and try and get

your reaction to what we talked about with Ms. Stratton

in the last panel, which is how do you avoid a situation

where the guidelines create a circumstance that everybody

is simply processing paper, processing people, moving

them through, and there is an inability to have the

individualized justice that I think everybody on every

side of this issue would like to see?

MR. CHARLTON: Well, I guess that question

assumes that plea agreements afford an individual less
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justice than a trial does. I don't know that that's

always true. I think it's statistically accurate to say

that we are trying fewer cases today than we did in the

past.

I can tell you that when I began at the U.S.

attorney's office in March of 1991, I prosecuted in my

first year, I believe, nine felon jury trials. Every

year after that, the number of cases that I tried

decreased.

Whether that was the result of the sentencing

guidelines being fully implemented, the Thornburgh

memorandum, or the Reno memorandum which followed, I

don't know. But it is a mystery to me which I still yet

don't completely understand.

JUDGE CASTILLO: Talking about attorney general

memorandums, do you think your fast track programs--

MR. CHARLTON: I'm sorry I slipped that in

somehow. How did I--

JUDGE CASTILLO: Do you think your fast track

programs will survive the new directives issued by
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Attorney General Ashcroft?

MR. CHARLTON: I have read and am familiar with

the four categories and standards which that memorandum

sets out as a requirement for the U.S. attorneys to

submit to the attorney general and the deputy attorney

general for approval. And it is my hope that the deputy

attorney general and the attorney general will see and

accept our fast track programs as fast track programs

that fit within those guidelines.

JUDGE MURPHY: Okay. Thank you so much for

coming and for your frankness. We appreciate it.

MR. CHARLTON: Thank you.

JUDGE MURPHY: And last, but certainly not

least, Professor Bowman, who since we saw him last holds

the name chair at the University of Indiana, the Palmer

Chair. And--but inexplicably is visiting at Wake Forest. 

And former prosecutor and one-time special counsel at

commission.

MR. BOWMAN: Thank you, Judge Murphy. And

members of the commission, thank you for your kind
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invitation to speak here today. As always, it's a

pleasure and an honor to talk with you.

I have to preface my remarks by saying that I'm

really deeply conflicted about this topic, as I'm sure

many of you are, I suspect. If I were still an assistant

U.S. attorney, I probably would be--and particularly if I

were in one of these districts, I probably would be in

favor of these fast track programs.

But as I'm not and as my perspective now is a

little bit more removed, I'm going to take at least the

position today of being the skunk at the feast and

suggest a few thoughts which, although I suspect many of

them already occurred to you, at least I hope will be the

cause for some reflection.

As you all know, of course, the federal

sentencing guidelines were created with a number of

objectives in mind. Primary among these was the

objective of eliminating unwarranted disparity.

To achieve that objective, as we know, the

drafters of the guidelines, the original ones, framed a
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modified real offense sentencing system, one in which the

presumption was that defendants are to be sentenced based

upon what they really did rather than some version of

events that's cobbled together by the parties in order to

grease the skids of a plea bargain.

In addition, the guideline system is based on

the idea of truth in sentencing. The notion that the

sentence handed down by the judge would be the actual

term a defendant would serve with only modest discount

for good behavior in prison.

It was because the guidelines were supposed to

be a real offense system and because the guideline

sentences announced in court were supposed to be the

actual term to be served that the commission has, from

the beginning, paid the most scrupulous attention to the

length of sentences that the guidelines prescribe.

The fast track component of the PROTECT Act

represents a formal abandonment of the primary

justification for enactment of the guidelines in the

first place, the objective of eliminating unwarranted
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disparity. In place of a system which at least strives

for national uniform sentences for similarly situated

offenders, we are about to substitute a system where, as

a matter of law, your sentence depends on the federal

district in which you were prosecuted.

Henceforward, if you smuggle Mexican aliens

across the Mexican border at Tijuana, you are legally

entitled to receive a lower sentence than if you smuggled

the same number of Chinese aliens into the harbor in San

Francisco.

Henceforward, not only will interdistrict

disparities be built into the law, but the mechanism for

creating those disparities formally abandons the idea

that ours is a real offense system in which sentences

flow from facts determined by a judge in favor of a

system that legitimizes sentence based purely on deals

made by the parties.

In addition, if we consider this fast track

provision in the context of other recent developments, it

represents the abandonment of any pretense that the
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guidelines as written have any necessary connection with

the sentence that a defendant will really serve. Recall

that the PROTECT Act has now granted the government a

monopoly on initiating the third-level reduction for

acceptance in addition to the power to make or withhold

substantial assistance motions that the government always

had.

Moreover, yesterday, Attorney General Ashcroft

issued his memorandum on plea bargaining policy. On the

surface, it looks like a set of tough restrictions on

plea bargains by assistant U.S. attorneys. If you read

the fine print, the memo changes almost nothing. It

reaffirms the government's power to make substantial

assistance agreements and its traditional right to charge

bargain, as well as prosecutors' ability to make deals

based on reassessments of the most readily provable

offense.

And for the first time, it gives official

Department of Justice sanction to fast track plea

bargains. In short, what it really says is "thou shalt
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not plea bargain," unless you plea bargain using any of

the plea bargaining methods you've always used in

addition to fast track. And all of this coming from an

administration whose public position is that public

safety demands there can be no retreat from the current

lengthy federal sentences for federal crimes,

particularly drug crimes.

The law is the law, says the administration. It

must be enforced to the letter. And anyone, particularly

any judge, who has the temerity to exercise discretion to

reduce a sentence for a federal felon is a law-breaker

himself who must be chastised or, according to some

people in Congress, actually impeached.

The fast track provision of the PROTECT Act and

the department's plea bargaining policies are what

happens when ideological purity and political posturing

collide with the facts on the ground. Congress has set

extraordinarily high sentences for drug and immigration

crimes. These crimes, as we've heard today, have become

ever more common on the Mexican border and elsewhere, and
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we have for years been beefing up enforcement and

interdiction efforts on the border.

At the same time, some U.S. attorney's offices

have, quite understandably, wanted to prosecute as

felonies more of the offenders caught on the border by

law enforcement agencies. However, those caught are

nominally subject to the very long sentences that the law

mandates. They don't want to plead to these sentences,

and the system lacks, or at least claims it lacks, the

resources to try them.

So rather than setting sentences at levels

commensurate with the seriousness of the offense and then

actually imposing them, with guilt and penalty determined

by a fair adjudicative process, what we've done is to set

penalties at insupportably high levels and then use those

high penalties as the starting point for a program of

huge sentencing discounts. A program consciously

designed to ensure that any sane, competently advised

defendant, against whom even a minimally credible case

exists, will plead guilty immediately and, if humanly
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possible, will cooperate.

The result is that at least as to drug and

immigration offenses, in the very district in which those

offenses are most common and the allegedly essential

deterrent effect of high sentences is most urgently

required, virtually nobody is ever sentenced to the

sentence that the law says is the correct one.

Now one view of the fast track programs is that

they are a new and cynical application of free market

theory to the halls of justice. Now defendants are

neither evil-doers in need of punishment or fellow

sinners in need of rehabilitation, but customers in the

sentencing bazaar.

For us, the legal rug merchants, the objective

now is neither retribution nor reformation, but

productivity. Because, so we are told, we are now in an

era of limited means, we must hold the line on both

capital outlays in the form of additional courtrooms and

labor costs for additional judges, courtroom personnel,

prosecutors, and defense attorneys.
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And thus, because our customer base is now

expanded, we must identify an optimal price differential

between the nominal sentence for crime, the one you

receive if you insist on exercising your rights, and the

sale price of crime, the sentence you receive if you roll

over really, really fast. The optimum price differential

is the one large enough to ensure that the deals on offer

are so attractive that a larger customer volume can be

processed through the system without increasing system

costs.

Now I really don't believe that the proponents

of fast track are thinking in these terms. Justification

is offered by the Justice Department, and the judges in

these very busy districts are appealing, at least if

they're viewed from the local perspective. If you're the

U.S. attorney or a district judge for the District of

Arizona, and waves of drug smugglers and illegal aliens

are washing across the border into your courthouses,

what, after all, are you supposed to do?

Well, let me offer a couple of modest
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suggestions for things that one might do before urging

distortion of the sentencing guideline system. The first

thing that one might do, and I think certainly some of

the judges and U.S. attorney's offices along the border

have done this, is demand more resources. After all, the

sole justification for border fast track is the claim

that border policemen are catching so many border

criminals that the existing number of border prosecutors

and judges can't handle the caseload without fudging the

law.

If this is the problem, then the Feeney

amendment to the PROTECT Act should have contained a

section authorizing new border courthouses, judges, and

AUSAs, instead of a section legalizing sentence cheating. 

But of course, due process costs money.

So second, if you can't or won't demand more

resources, try using the ones that you have. Again, the

justification for fast track is the assertion that there

are so many border defendants that we can't possibly try

them all, and if we don't offer extraordinary sentencing
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discounts, so many defendants will demand trials that the

system will collapse.

I say nonsense. No American jurisdiction tries

everybody, nor do you have to. What you have to do is to

have some sentencing discount large enough to induce

pleas, as, for example, a three-level acceptance

discount, which actually amounts to 33 percent of the low

end of the guideline range. And then you have to try

enough cases so that loss of the discount is a plausible

threat.

Now nobody can deny that the border districts

are loaded with cases, but there is reason to doubt that

they've ever tried managing their caseloads with the

resources they have without fudging the guidelines.

How can I say that? Look at the statistics,

some of which Commissioner Horowitz has already alluded

to. In the District of Arizona, in 2001, the U.S.

District Court sentenced 3,120 defendants and conducted

exactly 26 criminal trials. There are, according to the

court Web site, 13 active district court judges in
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Arizona, not counting the six senior judges who still

have chambers there.

In short, in 2001 in the District of Arizona,

each nonsenior judge conducted an average of exactly two

criminal trials a piece. If you count senior judges, it

was 1.5 trials per year.

In Arizona, there are some, according to the Web

site, some 220 people employed by the U.S. attorney's

office. I don't know how many of those, because the Web

site doesn't say, are assistant U.S. attorneys. But if

we assume that roughly a third of them are AUSAs, maybe

70, that means an Arizona assistant attorney goes to

trial on average once every three years.

Now this problem isn't limited to Arizona. 

Nobody particularly on the border goes to trial anymore. 

In 2001, all five Mexican border districts sentenced

16,833 defendants. Of all of those, exactly 267 of them

went to trial. By contrast, in 1993, when I was an

assistant U.S. attorney in the Southern District of

Florida, our district alone took 347 cases to trial. In
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1993, therefore, that one district tried 80 more cases

than went to trial in 2001 in all five border districts

put together.

This gaping chasm between what might be done and

what is now done cries out, I think, for some

explanation. Why aren't the border districts trying

hundreds of cases every year and using the threat of

trials to force guidelines compliance? At the least, why

aren't the U.S. attorneys pounding on their senators'

doors demanding the resources to make the attempt?

I can think of a couple of reasons. One, I

think, to be fair to them, at a certain point the sheer

number of cases begins to cut into your ability to try

cases. Past a certain point, even if you plead

everything, the ministerial burden of processing the

cases cuts down on the available time for trials, and I

understand that.

Now to what degree that's now happening on the

border, I can't say. I can say that I think that--I

don't think that the folks in Arizona, for example, are
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so overwhelmed the judges can only shoehorn in two

criminal trials a year and AUSAs one trial every three

years.

Second of all, I think, honestly, having been in

the U.S. attorney's office for a long time, it's actually

pretty hard for an office of career prosecutors to remain

committed year after year to trying hundreds of

repetitive, relatively low seriousness cookie-cutter

cases. The lawyers get bored, and it doesn't sharpen

their skills, and it doesn't advance their career paths,

and it's very hard to keep getting them to do it.

But in this observation, I think, lies the seat

of a larger point, which is really my final one. If the

criminals at issue here were murderers or drug kingpins

or corporate titans, both prosecutors and judges would, I

think, be working overtime, and they would be demanding

the resources to prosecute and sentence them to the full

extent of the law.

I think fast track exists and I think it endures

because neither judges nor prosecutors--and this really
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goes, I think, to a point that Judge Hinojosa was making. 

I think neither judges nor prosecutors think that most of

these cases are that serious, relatively speaking, or

that justice or public safety demand the strict

application of sentencing law.

Instead, fast track is another manifestation of

the quiet consensus that I've had occasion to comment on

before here that justice will often be as well or better

served by a sentence less than what the guidelines

require.

So what does all this mean for you as a

commission? The fact is, as Commissioner Steer was

really observing a while earlier, like it or not, the

PROTECT Act commands you to write a fast track guideline. 

You may think, as I tend to, that such a guideline really

spells the death of the guidelines as a coherent,

principled, rational, national sentencing system. But

you have to write it anyway.

So if I have any advice to you, and I don't have

much, it would be this. If you are most interested in
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minimizing the theoretical damage to the guideline

structure, you will write a guideline that imposes strict

conditions on the attorney general's finding of

necessity, insisting, for example, that a fast track

program address only crimes of a volume and type that

present a genuine national policy concern.

I'm saying this, by the way, I find it

interesting that before your even having acted, Attorney

General Ashcroft seems to have at least attempted to

preempt you by suggesting that he has the sole authority

to determine under what circumstances a fast track

program might be adopted in a district. It seems to me

that's not altogether clear from the statute and that you

may have some role to play in setting the parameters for

an acceptable fast track program.

And once again, if you were interested in

minimizing the damage to the theoretical structure of the

guidelines, you might write a guideline with very

restrictive rules about when fast track departures are

appropriate in individual cases.
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On the other hand, if your overriding concern

about the federal system today is with outcomes, if what

really bugs you is that the guidelines and mandatory

minimums too often produce inappropriately long

sentences, then you might step back and reflect that the

real effect of fast track is to reduce the sentences of

thousands of defendants to levels much close to what many

believe they should be anyway.

And if you do that, if you're thinking that way,

you might choose to give the Justice Department and the

attorney general the widest possible leeway to create

fast track programs whenever and wherever it suits them.

If you take the latter course, while you may not

have achieved guidelines purity, you may at least have

the private satisfaction of knowing that inevitably, if

irregularly, the punitive and centralizing instincts of

those now in control of main justice will be steadily

undermined by the pragmatism and the basic decency of the

judges and the prosecutors who really do the work of

federal criminal law.
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JUDGE SESSIONS: Did you say skunk in

the--

MR. BOWMAN: No skunks in here.

JUDGE MURPHY: Mr. Jaso?

MR. JASO: I must say that Professor Bowman, his

testimony today reminds me a little bit of the old saw

about I don't recall who was famously quoted as saying

reports of his death have been greatly exaggerated. But

it seems that, Professor Bowman, every time you come

here, Professor Bowman, it seems like you're proclaiming

the death of the guidelines as we knew them.

But in any event, I think that--and what I

wanted to ask you about really goes back to the question

you attempted to answer in your testimony, which was,

well, what do we do? Congress has, it seems to me,

clearly carved out as an exception. Perhaps I might

argue in conformance with the Sentencing Reform Act's

dictate that there be no unwarranted disparities in the

system, that perhaps the Congress has determined that

this is a warranted disparity in the system.
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I absolutely agree with your assessment that,

unfortunately, those districts in which these crimes are

the most prevalent and the need for the deterrence, as

you point out, is the greatest, the system essentially is

unable to render the

most--the highest level of deterrence per case. But

based on the testimony that we've heard from several

people today about what these fast track programs have

attempted to do is to rather--is creating a deterrent

effect by having a somewhat lower penalty for a greater

number of people.

The question that I wanted to pose to you is,

how in the realities of the unwillingness perhaps of

those--of Washington to give more resources to the border

are the U.S. attorneys supposed to change the current

programs to more effectively deter?

I would also just throw in as something to think

about, there are other districts that perhaps don't have

the extraordinary number of cases coming in. One that

springs to mind is my own new district, New Jersey, which
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has a significant port, several significant ports of

entry, is far from the border, clearly. But Route 95 is

on the way of sort of an artery of illegal immigration

from the borders.

And indeed, Newark Airport having large numbers

of immigration and drug cases, and there is no fast track

program there. And perhaps--and they, for whatever

reasons, have not deemed fit or necessary to have

programs. So the question again is what is the--what are

the border districts supposed to do about the situation?

MR. BOWMAN: Well, let me first respond, if I

might, to the suggestion that the reports that the death

of the guidelines have been exaggerated. The guidelines

will persist in form as long as Congress keeps them on

life support. They'll be there, and judges and

prosecutors and defense lawyers will be obliged to deal

with what are ostensibly a set of nationally uniform

rules.

What I talk about when I talk about the death of

the guidelines is the guidelines as they were originally
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conceived, a set of guidelines which combined the

characteristic of being a modified real offense system

with an effort to achieve national uniformity.

What is clear, I think, to me is that that

objective, if it were ever possible, clearly has not been

obtained. And what we have instead is a national system

in which each district essentially has created a

different set of sentencing rules based on the general

framework of the guidelines, but a system in which

sentencing outcomes vary tremendously from district to

district.

Now it may well be, and this is a legitimate

point--it may well be that an effort to create a

nationally uniform or reasonably uniform set of

guidelines was both impossible from the outset of

achievement and also is maybe undesirable. Maybe what we

want instead is a system in which local conditions are

the driving force all the time and everywhere.

I disagree with that notion. But what I'm

suggesting is that that's what we now have, and the
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institution of a fast track guideline confirms that and

puts into law something which those of us who've studied

the system knew was the case anyway. So the guidelines

will go along. But they are not now what they were

intended to be, and my guess is that they will never

become what they were intended to be, given current

developments. But perhaps I'm unduly pessimistic.

Now with respect to your question, I think that

the border districts have two basic options if the

question is what are you supposed to do? The first is

the one that was tried with some success in the Southern

District of Florida in the late '80s and early '90s,

which is actually apply the guidelines as written--a

shocking notion.

But we did it, and we did it granting no

downward departures for fast track. We did it giving

some substantial assistance departures, but a very low

rate, and offering plea agreements that almost uniformly

involved nothing more than acceptance of responsibility

and a recommendation of low end. And we did it by trying
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20 percent of the cases in that district, which was at

the time the busiest district in the country and had in

1993 somewhere around 1,400 or 1,500 cases.

Now that is somewhat small compared to the

massive numbers that are now flowing through the border. 

And so, it may be that even with the best will in the

world, the Miami model won't work. What I'm suggesting,

at least to get people to think about it today, is that I

don't think it's even being tried along the Mexican

border.

But the conclusion I draw from that is that it's

being--it's not being tried for the reasons I suggested,

and one of them being that I don't think--although the

U.S. attorney from Arizona was commendably cautious in

actually admitting it. But I don't think the folks on

the border, the prosecutors on the border, or the judges

on the border think that the sentences the guidelines

require for these cases are necessary.

They don't think that they're necessary for

deterrence. They're not necessary, they're not
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commensurate with the seriousness of the offense. So one

thing that the folks on the border might suggest doing is

recommending to this body that the sentences for these

kinds of crimes be reduced to a level that is really

commensurate with the seriousness that they themselves

privately think is appropriate.

On the other hand, I mean, you get down to the

basic question, what do you do if you don't want to

really try to apply the guidelines? What do you do if

you don't want to admit the sentences are too high? What

do you do when the INS keeps bringing in all of these

cases, and you've got to do something with them? I think

you do what they're doing.

I think, at the end of the day, you do what

they're doing. And I guess, given the law, the

commission has to try to craft the best rules that it can

that do the least violence to the principles undergirding

the sentencing guidelines and let these--let the

districts do their job. But that's all I can really say.

JUDGE MURPHY: Commissioner Horowitz?
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MR. HOROWITZ: Let me ask you about--we've heard

about this actually from a couple of districts, which is

charge bargaining, which is obviously not our purview. 

We talked a little about the fast track and writing in

the four-point reduction into the guidelines.

How do we--how would you look at, from our

perspective, the charge bargaining process that's going

on that we really don't have certainly any direct

involvement in and should not have direct involvement in?

MR. BOWMAN: Again, I'm not sure--I mean, other

than recognizing it and, you know, viewing it with

concern or something, I'm not sure exactly what you can

do.. Because I mean, it is clear, it seems to me, that

as a matter of law, the department has the right to enter

into those charge bargains. And as several of you have

noted, once they're entered into and particularly if it

involves, you know, a statutory cap, there's not much

that judges can do about it either.

I'm not sure that what you do about it, except

that you recognize that it's out there and that it's part
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of the overall phenomenon to which you're responding. 

But I don't know exactly what you do with it.

JUDGE MURPHY: Judge Castillo and then

Commissioner Steer.

JUDGE CASTILLO: Let me just again thank you for

coming here. You know I have great respect for your

work, Professor Bowman, and your career.

Don't you think, in a way, it's progress that

we're at least having this hearing today on fast track,

whereas five years ago, this was sort of swept under the

rug for a lot of people. A lot of people weren't aware

of it. At least right now, we're trying to grapple with

the situation.

I agree with you that in a perfect world, this

wouldn't exist, and I think all of the participants here

have said that in so many words. But when I talk to a

colleague who has 1,000 criminal cases per year, I

realize the world is far from perfect, and dealing with

that situation is just not that simple.

MR. BOWMAN: I mean, the answer is, I guess--can
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you restate the question?

[Laughter.]

JUDGE CASTILLO: Don't you think we're making

progress by just having this hearing--

MR. BOWMAN: I'm sorry.

JUDGE CASTILLO: --on this issue?

MR. BOWMAN: Well, I think it would be--

JUDGE MURPHY: Give us a pat on the back.

MR. BOWMAN: I think it would be making--I think

this would be real progress if you were having the

hearing before Congress passed a law that basically

predetermined the outcome of the hearing. I mean, yes,

absolutely.

That would be a wonderful discussion to have,

and I think you might well say, you know, the resource

constraints involved here are real and pragmatically

nothing is going to change. And therefore, we need to

give some mechanism to the border districts to deal with

their problems, and we're going to decide to do it in a

particular way. But I think you've got this altogether
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backwards.

Nonetheless, again, as Commissioner Steer has

reminded us, there is--you're reminding us there it is. 

And so, yes, I suppose it's progress in that sense. But

I guess I would add this caveat. I'm not sure sometimes

that sometimes some kinds of legal evasions are best left

as legal evasions, all right?

Because if certain kinds of practices are

understood to be illegitimate, then there is a sort of

implicit barrier against spreading them. Okay?

Once you say--once you take the thing out from

under the table, and you put it on the table, and you say

this kind of thing now is perfectly okay, how do you now

distinguish, as Mr. Jaso impliedly suggests, between the

situation on the border and the situation in the New

Jersey airport or the situation in Richmond, where

they've got a bunch gun cases because there the U.S.

attorney has historically decided that they want to do

gun cases.

Or the situation in any other city where the
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prosecution essentially creates a self-imposed resource

crisis by changing its intake policies, and then says,

"Oh, my God. We have a problem. So now let's change the

guidelines."

JUDGE CASTILLO: I agree with you. It skews the

federal national sentencing guideline system. But at the

very least, at the very least, doesn't getting a good

handle on this and understanding the impact of the

statistics, and then clearing the deck and seeing where

everything is once the smoke is cleared and seeing what

the real national departure rate is once you take these

statistics out, don't you think that would be at least an

educational project that the Sentencing Commission can

undertake to at least have a better dialogue with

Congress?

MR. BOWMAN: Absolutely. And you may well

decide--and I don't know whether you will--you may well

decide that while--having had this conversation, while

you're willing to concede that the border situation is

sort of sui generous, that there isn't any other
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situation in the country that you can readily imagine

that would justify this kind of deviation from guidelines

principles. And if that's the case, that would affect

the kind of guideline you might write.

JUDGE MURPHY: Commissioner Steer, we're over

time here. So I know there may be others who want to ask

questions, but I'm hoping this is the last one probably.

MR. STEER: Okay. Well, let me see if I can do

this a little more quicker than otherwise. A quick

comment. I'm not sure your first suggestion in your

testimony is pragmatic because we have that

circumscribing the guideline because we have to depend on

prosecutors to enforce it. And if they don't want to,

then, you know, what good is it?

But what if we took two Sentencing Reform Act

principles, equity and deterrence, and went in the other

direction? What if we wrote a guideline discount, a

downward adjustment for a criminal alien meets basically

the criteria for--that the department now uses for fast

track in whatever district he is found.
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Does all the things about waiving his rights and

so forth, comes forward, saving society some resources,

the criminal justice system some resources, we give that

person a discount. Maybe we even couple it with a fair

warning to that defendant, "You got a discount this time. 

Now what we're trying to do is to get you out of the

country and keep you out of the country." That, after

all, is the purpose of this punishment.

"Come back again, we're actually going to

increase your sentence by the amount of the discount. 

We're going to put more time on it if you come back

again," and we'll do that through the guidelines. And we

do that in every district.

And in the border districts, basically, the

judge would have the--you know, you would either give the

discount or you would give the--if the government still

wants to have a fast track, then you give the departure,

whichever is, I guess, the best deal. So how does that

strike you?

MR. BOWMAN: Well, off the top of my head, it
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sounds great. The only thing I wonder, and I would be

interested actually--more interested to hear the response

of the Department of Justice than my response because my

response doesn't matter. But I wonder whether the

Department of Justice would really be prepared to accede

to the implicit value judgment that comes with that

suggestion.

That is, that the sentences that we now

prescribe are for many of these defendants unnecessary

and that nationally it would make more sense, regardless

of whether they're on the border, to give reduced

sentences for the kinds of defendants who are now given

fast track departures on the border.

If you were to make that determination

uniformly, and I don't think you can make any objection

to it from the point of view of guideline structure, but

is that a politically viable option? I guess you'd have

to find that out.

JUDGE MURPHY: Well, you know, Professor Bowman,

thanks a lot for coming. You are one of the people that
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thinks a lot about this whole area and observes it with a

sharp eye, and it's very helpful for us.

MR. BOWMAN: Thank you, Your Honor. It's always

a pleasure.

JUDGE MURPHY: Thanks. So we'll close the

hearing with that. I think it's been a very good

hearing. We appreciate again your coming from the

Central District of California.

[Whereupon, at 4:16 p.m., the hearing

adjourned.]