UNCERTAIN JUSTICE: THE STATUS OF FEDERAL 

SENTENCING AND THE U.S. SENTENCING COMMISSION SIX YEARS AFTER U.S. V. BOOKER 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

OCTOBER 12, 2011 

Serial No. 112–142 

Printed for the use of the Committee on the Judiciary 

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UNCERTAIN JUSTICE: THE STATUS OF FEDERAL SENTENCING AND THE 

U.S. SENTENCING COMMISSION SIX YEARS AFTER U.S. V. BOOKER 

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UNCERTAIN JUSTICE: THE STATUS OF FEDERAL 

SENTENCING AND THE U.S. SENTENCING COMMISSION SIX YEARS AFTER U.S. V. BOOKER 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

OCTOBER 12, 2011 

Serial No. 112–142 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

[Vacant] 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

MARK AMODEI, Nevada 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

[Vacant] 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

OCTOBER 12, 2011 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4 

WITNESSES 

Honorable Patti B. Saris, Chair, United States Sentencing Commission 

Oral Testimony ..................................................................................................... 10 

Prepared Statement ............................................................................................. 12 

Matthew S. Miner, Partner, White & Case, LLP 

Oral Testimony ..................................................................................................... 100 

Prepared Statement ............................................................................................. 103 

William G. Otis, Adjunct Professor, Georgetown Law 

Oral Testimony ..................................................................................................... 112 

Prepared Statement ............................................................................................. 115 

James E. Felman, Kynes, Markman & Felman, P.A. 

Oral Testimony ..................................................................................................... 125 

Prepared Statement ............................................................................................. 128 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 5 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 6 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 7 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 225 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the American Civil Liberties Union ................................ 331 

Executive Summary on Racial Disparity in Wake of the Booker/Fanfan Decision, published by the American Society of Criminology .................................. 350 

Page

IV 

Research Article on Racial Disparity in Wake of the Booker/Fanfan Decision, 

published by the American Society of Criminology ........................................... 353 

Response to Questions for the Record from the United States Sentencing 

Commission ........................................................................................................... 395 

Response to Question 7 ........................................................................................ 442 

(1) 

UNCERTAIN JUSTICE: THE STATUS OF FEDERAL SENTENCING AND THE U.S. SENTENCING COMMISSION SIX YEARS AFTER 

U.S. V. BOOKER 

WEDNESDAY, OCTOBER 12, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10 a.m., in room 

2141, Rayburn Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Goodlatte, Marino, 

Griffin, Adams, Quayle, Scott, Conyers, Johnson, Deutch, Jackson 

Lee, Quigley, and Amodei. 

Staff present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Sam Ramer, Counsel; Lindsay Hamilton, Clerk; (Minority) 

Bobby Vassar, Subcommittee Chief Counsel; Liliana Coranado, 

Counsel; Veronica Eligan, Professional Staff Member. 

Mr. SENSENBRENNER. The Subcommittee will come to order. 

Without objection, the Subcommittee will be allowed to recess 

during votes on the Floor, which we do not anticipate this morning. 

I yield myself 5 minutes for an opening statement. 

I want to welcome everyone to today’s hearing on the status of 

Federal sentencing in the U.S. Sentencing Commission 6 years 

after the Supreme Court decided U.S. v. Booker. 

Well, here we are again. It seems only yesterday that Congress 

passed the PROTECT Act in an attempt to bring fairness and consistency to Federal sentences across the country. 

I said it then and I will say it again. It is because it is still true. 

A criminal committing a Federal crime should receive similar 

punishment regardless of whether the crime was committed in 

Richmond, Virginia, or Richmond, California, and that is why I am 

deeply concerned about what is happening to Federal sentencing. 

It is also why Congress passed the Sentencing Reform Act in 

1984, reflecting Congress’ original intent for fair and equal justice 

throughout the Federal judiciary. That year, there were wide disparities in Federal sentencing nationwide. 

Experts on criminal law, including many Federal judges, pushed 

Congress for an answer. So Congress created the sentencing guidelines—a mandatory sentencing regime that took various factors 

2 

into account in crafting criminal sentences that would serve the interests of society and of justice. 

And we created the U.S. Sentencing Commission to analyze the 

judiciary, collect data and to occasionally make small changes to 

the guidelines under congressional oversight, of course. 

In 2005, the Supreme Court in U.S. v. Booker undermined the 

sentencing guidelines, making them advisory. I would say they destroyed the guidelines. In subsequent decisions, the Supreme Court 

reduced the ability of appellate courts to review and correct sentences made at the district court level. 

Over the last 6 years, the justices wrested back most if not all 

of the old discretion Federal judges used to have—a discretion that 

Congress found was abused in 1984 when it passed the sentencing 

guidelines law. And the results of this discretion are becoming 

clear. The increasing frequency of downward departures is undermining sentencing fairness throughout the Federal system. 

As we have learned from the Chairwoman’s written testimony, a 

convicted criminal in the Western District of Wisconsin now has a 

40 percent chance of getting a sentence below the guidelines while 

a convicted criminal in the Middle District of Georgia has a 4 percent chance of getting a sentence below the guidelines. 

In New York City, almost half the sentences being handed out 

are below the guidelines. This is not the way we would expect justice to be delivered in the United States in the 21st century. 

The unfairness doesn’t stop with region. There are wide sentencing disparity depending upon what crime the defendant commits. 

If the defendant is a convicted child porn possessor, he is in luck. 

Federal judges now lower sentences for child porn professors at the 

highest rate—30 percent are below the guidelines. 

It is better—a better time also to be convicted of fraud, which 

has the lower than guideline rate of 17 percent. I would expect my 

colleagues across the aisle to be deeply concerned with these developments because they also involve racial disparities, something we 

hear a lot about in this Committee. 

In the period before we passed the PROTECT Act in 2003, a 

Black man in the U.S. received a sentence on average of 11.2 percent greater than that of a White man. After we passed the PROTECT Act, that number dropped to 5.5 percent. 

Now, however, since the Supreme Court has decided these cases, 

the Black man receives on average a sentence of 20 percent higher 

than that of a White man. 

These numbers should be chilling to the friends to my left and 

I expect vigorous questions from them on why these guidelines 

which protect all Americans regardless of ethnic identity have not 

been reestablished. 

In the last 6 years, as the judiciary has untethered itself from 

the checks and balances of the legislative branch, one would expect 

the Sentencing Commission to come up with a plan of action to 

make the guidelines relevant again. 

Yet, we have not received any proposal from the Commission for 

6 years. It is as if the Commission is satisfied that the regulations 

they promulgate can be routinely ignored. 

3 

In addition, we have watched with alarm some of the changes to 

the guidelines the Commission has made. These changes seem to 

have one effect overall on Federal sentences—reductions across the 

board. 

Recently, the Commission ordered that the new, more lenient 

crack cocaine sentencing ratio be made retroactive, leading to the 

release of some 12,000 crack cocaine offenders. This has been done 

over the strenuous objection of many of us in the majority. 

The Commission, however, cost just as much or more to operate 

than it ever did. Ironically, since 2005 when the guidelines became 

ephemeral, the budget of the Sentencing Commission has gone up 

by about 20 percent. 

This is another disparity that Congress should look at. I anticipate an open line of communication with the members of the Federal judiciary in the upcoming year on issues of interest such as 

improving our justice system, the Federal sentencing guidelines 

and judicial pay. 

I look forward to hearing more about this issue and thank all of 

our witnesses for participating in today’s hearing. It is now my 

pleasure to recognize for his opening statement the Ranking Member of the Subcommittee, the gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Six years ago, the Supreme Court decided in U.S. v. Booker in 

which it held that the mandatory sentencing guideline system was 

unconstitutional. 

This is the third hearing the Subcommittee has held about that 

case since it was decided and I have the same position I had in 

2005 shortly after the decision and 2006, 1 year after the decision, 

and that is that the decision did not create a problem that needs 

fixing—that Booker in fact was the fix, not the problem, and our 

response should be don’t just do something, stand there. 

Six years after the decision, it is even clear to me that—it is 

clear to me that it was the time Booker was decided and the reason 

I can say that without hesitation is that the Commission’s own statistics bear this out. 

Now, let’s get to the heart of the matter and the impetus for this 

hearing—how often are judges following the sentencing guidelines. 

And the answer is over 80 percent of the time, and the compliance 

rate, in fact, is trending upward. 

Notably, the rate of nongovernment-sponsored below range sentencing dropped to 16.9 percent in the third quarter of 2011, down 

from 18.7 in the fourth quarter of 2010, and this rate is only 4.2 

percentage points lower than the rate within the first year after 

Booker when many courts were continuing to treat the guidelines 

as mandatory pending further clarification from the Supreme 

Court. 

The government-sponsored below range rate is approximately 27 

percent. The drop in the below range sentencing during the first 

three quarters of 2011 corresponds with the reduction in the crack 

guidelines from November 1, 2010, as a direction—as a consequence of the Fair Sentencing Act of 2010. 

A 16.9 percent variance from sentencing guidelines by judging— 

by judges is hardly cause for alarm. Indeed, it shows that the 

4 

judges are sentencing within the guideline range or following the 

prosecutors’ recommendations 83.1 percent of the time. 

It is also notable that the government does not object to at least 

half of the judicial variances even though it wins 60 percent of the 

time it appeals those cases. 

When judges do not follow the guidelines, the extent of variance 

and departure is less than 13 months and that has remained stable 

since Booker was decided. 

Furthermore, judges are following the guideline recommendations for the kind of sentence to impose whether prison, probation 

or an intermediate sentence such as home detention even more 

than they were before Booker. Now, this underscores what we should draw as a distinction between warranted and unwarranted disparities. The Sentencing Reform Act was concerned only with eliminating unwarranted sentencing disparities. Simply focusing on the rate of disparities obscures the truth. 

All of this tells us two things. First, it tells us the judges are following the guidelines over 80 percent of the time. Although when 

surveyed many judges disagree with certain parts of the guidelines, 

judges have shown a great deal of restraint in imposing sentences 

outside the recommended range. Second, it tells us that the system 

is working and shows how the system is supposed to function. 

When Sentencing Commission amends the guidelines to better 

reflect statutory purposes and the factors enumerated in the Sentencing Reform Act, judges followed them more frequently. Nothing 

that I have seen to date demonstrates a need to curtail the limited 

judicial discretion that Booker restored. In fact, it shows just the 

opposite. 

The attack on judicial discretion suggests that Congress or the 

Commission, who know nothing about the specific offense or the 

circumstances surrounding it or the prosecutors who play an adversarial role in administering criminal justice, are in a better position 

to determine a fair sentence than judges who hear all of the facts 

and the circumstances from both sides. 

Now, this defies common sense. And to the extent that equal justice around the country is important, if some prosecutors in one 

district overcharge as a matter of policy compared to other districts, the judge is in a position to compensate. 

So I look forward to hearing testimony of the witnesses and I 

hope that we can have a productive conversation about sentencing—federal sentencing that is rooted in what the data and research indicates. 

So I thank you, Mr. Chairman, and look forward to hearing from 

our witnesses. 

Mr. SENSENBRENNER. Thank you. 

The Chairman Emeritus of the Committee, the gentleman from 

Michigan, Mr. Conyers, is recognized for 5 minutes. 

Mr. CONYERS. Thank you, Chairman Sensenbrenner, and Members of the Committee. 

We welcome our panel. This is an important discussion and I am 

glad we have a variety of former lawyers, prosecutor and others 

thrown in here—judges. I have some ambivalence and I have been 

talking it over with my staff. 

5 

The bottom line is whether we need the Sentencing Commission—although it has done some good things—or not, and I am— 

that, to me, is in the back of my mind as we discuss this. I know 

there are a variety of views and I am going to ask the witnesses 

to tell me what they think about the continued role of the Sentencing Commission. 

But Congress has a role to play in setting sentencing policy but 

it is limited. The next thing we should talk about is that the Booker decision reflects the original intent of the guidelines. 

We find 80—some tell me 83 percent—of the decisions go outside—are within the range, and third, I don’t think the sentencing 

guidelines need to be revised. I am surprised that my Chairman 

still believes firmly that Booker destroyed the guidelines. 

That is one I am going to study very carefully after this hearing 

to determine the degree of accuracy in that statement. 

But it seems to me that our Ranking Member, Bobby Scott, the 

former Chairman of this Subcommittee, has paid so much attention 

to the matter that it is pretty clear that we have a system which 

a lot of—a lot of factors play into it, and Chairman Sensenbrenner 

mentioned race in terms of the criminal justice sentencing process. 

I compliment him for acknowledging that and I look forward to 

working with him on developing that part of his presentation as 

well. So I will ask that my entire statement be included and I 

thank the Chairman for allowing me to speak. 

Mr. SENSENBRENNER. Without objection, and without objection 

all Members’ statements will appear in the record at this point. 

[The prepared statement of Mr. Sensenbrenner follows:] 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security 

I want to welcome everyone to today’s hearing on the status of Federal sentencing 

and the U.S. Sentencing Commission six years after U.S. v. Booker. 

Well, here we are again. It seems only yesterday that Congress passed the PROTECT Act, in an attempt to bring fairness and consistency to Federal sentences 

across the country. I said it then, and I will say it again, because it is still true: 

A criminal committing a federal crime should receive a similar punishment regardless of whether the crime was committed in Richmond, Virginia or Richmond, California. And that is why I am deeply concerned about what is happening to Federal 

sentencing. 

And that’s also why Congress passed the Sentencing Reform Act in 1984, reflecting Congress’s original intent for fair and equal justice throughout the federal judiciary. 

In 1984, there were wide disparities in Federal sentencing nationwide. Experts on 

criminal law, including many Federal judges, pushed Congress for an answer. So 

Congress created the Sentencing Guidelines, a mandatory sentencing regime that 

took various factors into account in crafting criminal sentences that would serve the 

interests of society, and of justice. And we created the U.S. Sentencing Commission 

to analyze the Judiciary, collect data, and to occasionally make small changes to the 

Guidelines, under Congressional oversight, of course. 

In 2005, the Supreme Court, in U.S. v. Booker, undermined the Sentencing Guidelines, by making them advisory. In subsequent decisions, the Supreme Court reduced the ability of appellate courts to review and correct sentences made at the 

District Court level. Over the last six years, the Justices wrested back most, if not 

all, the old discretion Federal judges used to have. 

And the results of this discretion are becoming clear. The increasing frequency of 

downward departures is undermining sentencing fairness throughout the federal 

system. As we have learned from the Chairwoman’s written testimony, a convicted 

criminal in the Western District of Wisconsin now has a 40% chance of getting a 

sentence below the Guidelines, while a convicted criminal in the Middle District of 

6 

Georgia has a 4% chance of getting a sentence below the Guidelines. In New York 

City, almost half the sentences being handed out are below the Guidelines. That is 

not the way you expect justice to be delivered in the United States in the 21st century. 

The unfairness doesn’t stop with region; there are wide sentencing disparities depending on what crime you commit. If you are a convicted child porn possessor, 

you’re in luck: Federal judges now lower sentences for child porn possessors at the 

highest rate, nearly 30% are below Guidelines. It’s also a better time to be convicted 

of fraud, which has a lower-than-guideline rate of 17%. 

I would expect my colleagues across the aisle to be deeply concerned with these 

developments, because they also involve racial disparities, something we hear a lot 

about in this Committee. In the period before we passed the PROTECT Act in 2003, 

a black man in the U.S. received a sentence, on average, 11.2% greater than that 

of a white man. After we passed the PROTECT Act, that number dropped to 5.5%. 

Now, however, since the recent Supreme Court decisions, a black man receives, on 

average, a sentence 20% higher than that of a white man. These numbers should 

be chilling to Democrats, and I expect vigorous questions from them on why these 

guidelines, which protect all Americans regardless of ethnic identity, have not been 

reestablished. 

In the last six years, as the Judiciary has untethered itself from the checks and 

balances of the legislative branch, one would expect the Sentencing Commission to 

come up with a plan of action to make the Guidelines relevant again. Yet, we have 

not received any proposal from the Commission for six years. It is as if the Commission is satisfied that the regulations they promulgate can be routinely ignored. 

In addition, we have watched with alarm some of the changes to the Guidelines 

that the Commission has made. The changes seem to have one effect, overall, on 

Federal sentences: reduction, across the board. Just recently, the Commission ordered that the new, more lenient crack cocaine sentencing ratio be made retroactive, 

leading to the release of some 12,000 crack cocaine offenders. They have done this 

over the strenuous objection of many of us in the Majority. 

The Commission however, costs just as much, or more, to operate, than in ever 

did. Ironically, since 2005, when the Guidelines became ephemeral, the budget of 

the Sentencing Commission has gone up by about 20%. That’s another disparity 

Congress may want to look at. 

I anticipate an open line of communication with the members of the Federal Judiciary in the upcoming year on issues of interest such as improving our justice system, the Federal sentencing guidelines, and judicial pay. 

I look forward to hearing more about this issue and thank all of our witnesses 

for participating in today’s hearing. 

[The prepared statement of Mr. Scott follows:] 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Member, Committee on the Judiciary 

Thank you, Mr. Chairman. Six years ago the Supreme Court decided U.S. v. Booker, in which it held that the mandatory sentencing guidelines system was unconstitutional. This is the third hearing that the subcommittee has held about this case 

since it was decided. I have the same position that I had in 2005, shortly after the 

decision, and in 2006, one year after the decision. The decision did not create a problem that needs fixing. Booker WAS the fix—not the problem. Six years after the decision, this is even clearer to me today than it was at the time Booker was decided. 

The reason that I can say this without hesitation is that the Commission’s own 

statistics bear this out. Let’s get right to what seems to be the heart of the matter 

and the impetus for the hearing. How often are judges following the sentencing 

guidelines? The answer is in over 80% of the time. And the compliance rate is 

trending upward. Notably, the rate of non-government sponsored below-range sentences dropped to 16.9% in the third quarter of 2011, down from 18.7% in the fourth 

quarter of 2010. This rate is only 4.2 percentage points lower than the rate within 

the first year after Booker when many courts were continuing to treat the guidelines 

as mandatory pending further clarification from the Supreme Court. The government sponsored below range rate is approximately 27%. 

The drop in below-range sentences during the first three quarters of 2011 corresponds with the reduction in the crack guidelines on November 1, 2010 as directed 

by the Fair Sentencing Act of 2010. A 16.9% variance rate from sentencing guidelines by judges is hardly cause for alarm. Indeed, it shows that judges are senVerDate Aug 31 2005 17:31 Nov 01, 2012 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 C:\PDF\OUT\101211\70669.000 HJUD PsN: DOUG
7 

tencing within the guideline range or following the prosecutor’s recommendation 

83.1% of the time. 

It is also notable that the government does not object to at least half of the judicial variances, even though it wins 60% of the appeals on 3553(a) factors. 

And when judges do not follow the guidelines, the extent of variances and departures is less than 13 months, and that has remained stable since Booker was decided. Furthermore, judges are following the guidelines’ recommendations for the 

kind of sentence to impose, whether prison, probation, or an intermediate sentence 

such as home detention, even more than they were before Booker. 

This underscores that we should draw a distinction between warranted and unwarranted disparities; the Sentencing Reform Act was concerned only with eliminating unwarranted sentencing disparities. Simply focusing on the rate of disparities obscures this truth. 

All of this data tell us two things: First, it tells us that judges are still following 

the guidelines over 80% of the time. Although when surveyed many judges disagree 

with certain parts of the Guidelines, judges have shown a great deal of restraint 

in imposing sentences outside the recommended range. 

Second, it tells us that the system is working and shows how the system is supposed to function. When the Sentencing Commission amends the guidelines to better 

reflect the statutory purposes and factors enumerated in the Sentencing Reform Act, 

judges follow them more frequently. 

Nothing that I have seen to date demonstrates a need to curtail the limited judicial discretion that Booker restored. In fact, it shows the exact opposite. 

The attack on judicial discretion suggests that Congress, or the Commission, who 

know nothing about the offense or the circumstances surrounding it, or prosecutors, 

who play an adversarial role in administering criminal justice, are in a better position to determine a fair sentence than the judges who hear all of the facts and circumstances from all sides. This defies common sense. 

I look forward to hearing the testimony of the witnesses and hope that we can 

have a productive conversation about federal sentencing that is rooted in what the 

data and research indicates. 

Thank you for attending today’s hearing. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

While today’s hearing provides an important opportunity to have a conversation 

about federal sentencing policy, I am concerned that the title of this hearing—Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker—is misleading. 

It suggests that the Supreme Court’s decision in Booker created some type of uncertainty in federal sentencing, which is neither accurate nor supported by the data. 

In reality, the Booker decision did not have as much of an impact on our Nation’s 

sentencing system as was predicted. 

For the most part, our current system is very similar to the mandatory sentencing 

guidelines system that existed before Booker. To some, including myself, this is disappointing. 

Yet others, including the Majority’s witnesses, are sounding an alarm—this hearing is part of that—that would make one believe that there is some type of crisis 

with the system, namely, that judges have gone rogue after Booker. That is simply 

not the case. 

I would like to share three critical principles about federal sentencing that should 

inform our conversation here today. First, Congress clearly has an important 

role to play in setting sentencing policy, but it is a limited role. 

Although there is no proposal on the table as of yet, I understand that the majority’s witnesses, including the Chair of the Sentencing Commission, recommend Congressional action. 

Given the fact that the data indicate judges are sentencing within the sentencing 

guideline range over 80% of the time, I fail to see a need for such action. 

Congress should decline the invitation to act to change federal sentencing policy. 

The proper role of Congress is to set the outer limits of a sentence, known as the 

statutory maximum, under the statute that criminalizes the conduct, which we do 

each time we create a new criminal offense. 

8 

Limiting Congress’ role in this way is consistent with the original intent of the 

Sentencing Reform Act, which was passed as a part of the 1984 Comprehensive 

Crime Control Act. 

This Act was possibly the most comprehensive change in sentencing law and practice in American history. 

The legislation created two of the most important components of federal sentencing policy in this country: the United States Sentencing Commission and the 

Federal Sentencing Guidelines. 

Twenty-five years ago there was considerable debate about whether the Federal 

Sentencing Guidelines as created under the Sentencing Reform Act should be mandatory or advisory. 

However, the U.S. Supreme Court 6 years ago decided in the case of United States 

v. Booker that the guidelines should no longer be mandatory. In the Booker decision, 

the Court held that federal district courts must consult the sentencing guidelines, 

but were not bound by them. 

This brings me to my second point, namely, that the Booker decision was the right 

decision by the Court, and it reflects the original intent of the guidelines. 

As Senator Ted Kenney, the author of the Sentencing Reform Act, envisioned the 

sentencing system, he did not intend for judges to be bound by the guidelines. So 

it seems that we have come full circle. 

Perhaps more importantly, the Booker decision was firmly rooted in the Constitution, in that the high court held that a mandatory guidelines system violated a defendant’s Sixth Amendment right to trial. 

The current advisory system established by Booker gives judges the discretion to 

set a sentence outside of the guideline range, when appropriate. 

This limited discretion allows judges to impose a sentence that fits the crime and 

the offender, and provides the Sentencing Commission important feedback, as contemplated by the Sentencing Reform Act and the Supreme Court, all of which was 

eviscerated in the mandatory guideline era. 

We should not be afraid of judicial discretion, because federal judges play the 

most important and most neutral role in the sentencing process. 

Sentences outside of the guideline range will decrease, and have already done so 

this year as compared to last, as the Commission heeds judges and researchers and 

incorporates both of these important pieces into the guidelines. 

This is how fair sentencing policies are set and fair sentences are achieved. Thus, 

any efforts to alter the current advisory nature of the guidelines are wrong and unnecessary. 

Third, while I do not believe that the sentencing guidelines need to be revised, 

there remain several obstacles to fairness in criminal justice sentencing, and to fulfilling the original intent of the sentencing guidelines, that must be addressed. 

One of the biggest obstacles is mandatory minimum sentences. Mandatory minimum sentences in the federal system began to be enacted around the same time 

as the sentencing guidelines. As a result, we have never had a chance to understand 

how the guidelines would work without the overarching shadow of mandatory minimums. 

It is time to give the federal sentencing guidelines an opportunity to work without 

being linked to mandatory minimums. 

Mandatory minimums have resulted in a perception of unfairness in our justice 

system. 

One of the most glaring examples of injustice in our sentencing policy, and where 

mandatory minimums have had the most pernicious effect, is the federal crack cocaine law. 

The message I have today is primarily for my colleagues in Congress—stop interfering in the important work of the Commission and our judges in ways that perpetuate and exacerbate inequities in the criminal justice system. 

Our role now should be to undo the damage that we have done with the creation 

of so many mandatory minimums and directives to the Sentencing Commission. 

And, we should provide appropriate guidance to the Commission and judges. 

It is only through this delicate dance between the three Cs—Congress, the Commission, and Courts—that we can ever hope to achieve fair and just sentencing policies. 

Thank you for attending today’s hearing. I thank the witnesses in advance and 

look forward to hearing from each of you. 

Mr. SENSENBRENNER. It is now my pleasure to introduce today’s 

witnesses. Judge Patti B. Saris was confirmed as a member and 

9 

chair of the United States Sentencing Commission in 2010. Judge 

Saris has served as a U.S. district judge for the district of Massachusetts since 1994. 

Prior to her appointment to the district court, Judge Saris served 

as an associate justice for the Massachusetts Superior Court from 

1989 to 1993. 

From 1986 to 1989, Judge Saris served as a Federal magistrate 

judge for the United States District Court for the District of Massachusetts. She was an attorney in the Civil Division of the Justice 

Department from 1982 to 1986 and held the position of chief of the 

Civil Division Office of the United States Attorney for Massachusetts from 1984 to 1986. 

From 1989 until 1981 Judge Saris served as a counsel to the 

United States Senate Committee on the Judiciary. She received her 

Bachelor of Arts from Radcliffe College in 1973 and her J.D. from 

Harvard Law School in 1976. 

Matthew Miner is a partner at White & Case in Washington, 

D.C. Prior to joining the firm, Mr. Miner was minority staff director at the Senate Judiciary Committee. During his tenure with the 

Senate, Mr. Miner served in many other senior roles such as majority chief counsel of the Subcommittee on Administrative Oversight 

and the Courts. 

He has also held the positions of majority chief counsel for 

Crime, Terrorism and Oversight for the Senate Judiciary Committee and majority counsel for the Senate Permanent Committee 

on Investigations. 

Prior to his Senate committee service, Mr. Miner was an assistant U.S. attorney in the Middle District of Alabama. He also 

worked in private practice in Philadelphia handling civil litigation 

and compliance matters. He received a Bachelor of Arts degree 

from the University of Cincinnati in 1992 and his J.D. from the 

University of Michigan Law School in 1997. 

Mr. William Otis is presently an adjunct professor of law at 

Georgetown Law School. Prior to his current position, he was a 

counselor to the head of the Drug Enforcement Administration 

from 2003 to 2007. From 2002 to 2003, Mr. Otis was the special 

assistant to the secretary of Energy. 

Previously, Mr. Otis worked as head of the Appellate Division of 

U.S. Attorneys Office for the Eastern District of Virginia from 1981 

through 1999. 

In 1992, he was detailed to the White House as a special counsel 

for President George H. W. Bush. He received his Bachelor of Arts 

degree from the University of North Carolina in 1968 and his J.D. 

degree from Stanford Law School in 1974. 

Mr. JAMES E. Felman is a partner at Kynes, Markman and 

Felman in Tampa, Florida, and has been with the firm since 1991. 

Prior to joining the firm, he was an associate at Winkles, 

Trombley, Kynes & Markman, P.A., from 1989 to 1981. He taught 

as an adjunct professor at Stetson University College Law from 

1990 to 1993. He was a member of the Practitioners Advisory 

Group to the Sentencing Commission from 1994 to 2009 and served 

as co-chair of the group from 1998 to 2002. 

He is the co-chair of the Committee on Sentencing of the American Bar Association and has served as a member of the Governing 

10 

Counsel of the ABA Criminal Justice section since 2008. He received his B.A. from Wake Forest in 1984 and his M.A. in philosophy and juris doctor from Duke University in 1987. 

All of the witnesses’ written statements will be entered into the 

record in their entirety and I ask that each witness summarize his 

or her testimony in 5 minutes or less. 

I now recognize Judge Saris. Could you pull the microphone a little closer and make sure that it is on so the reporter can hear you? 

TESTIMONY OF PATTI B. SARIS, CHAIR, 

UNITED STATES SENTENCING COMMISSION 

Judge SARIS. Is that on? [Laughter.] 

Mr. SENSENBRENNER. Yes. 

Judge SARIS. Yes. All right. Chairman Sensenbrenner, Ranking 

Member Scott, and Members of the Subcommittee, thank you for 

inviting me to testify today on behalf of the United States Sentencing Commission. 

The Commission is an independent bipartisan agency in the judicial branch. In the Sentencing Reform Act of 1984, Congress 

charged the Commission with ensuring that the purposes of sentencing—certainty, fairness, transparency, consistency, and proportionality—be met. 

Commissioners come from judicial, prosecutorial and defense 

backgrounds and we work by consensus wherever possible. As you 

know, in its landmark decision Booker in 2005, the Supreme Court 

held that the mandatory guidelines violated the Sixth Amendment. 

Since then, the Federal sentencing scheme has changed dramatically. 

After making the guidelines advisory, the Supreme Court has 

issued seven additional sentencing decisions that have, one, 

changed the appellate standard from de novo to a more deferential 

standard of reasonableness; two, informed sentencing courts that a 

guideline sentence may not be presumed reasonable; three, instructed sentencing courts to consider all of the statutory factors in 

3553(a) including individual offender characteristics; and four, indicated to sentencing courts that they may sentence outside the 

guidelines for policy reasons. 

Under this Supreme Court case law, the guidelines remain the 

starting point and baseline for all sentences. There were more than 

80,000 felony and Class A misdemeanor sentences issued last year 

and in approximately 80 percent of those cases judges issued a sentence within the guideline range or below that range at the government’s request. 

The guidelines exert a demonstrable gravitational pull on nonguideline sentences and many believe an advisory Booker system 

best serves the goals of sentencing in the SRA. 

The Commission believes that the status quo has some weaknesses. Statistically, the Commission has observed an increase in 

nongovernment-sponsored below range sentences from 12.5 percent 

in 2006 to 17.8 percent in 2010. 

The Commission also found differences among different districts 

and for certain demographic groups. For example, in fiscal year 

2010, the variance rate ranged from below 5 percent in one district 

to nearly 50 percent in another district. 

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Further, the difference between sentences for Black and White 

male offenders nationally has increased since Booker and Black 

males now receive more than 20 percent longer sentences than 

White males. 

As the Supreme Court put it in Booker, the ball now lies in Congress’ court and the Commission proposes the following legislative 

changes. 

First, Congress should enact a more robust appellate review 

standard that requires appellate courts to apply a presumption of 

reasonableness to sentences within the properly calculated guideline range. 

The Commission also believes that Congress should require that 

the greater the variance from a guideline the greater should be the 

sentencing court’s justification for the variance. 

Congress also should create a heightened standard of review for 

sentences imposed as a result of a policy disagreement with the 

guidelines. 

Second, the Commission recommends that Congress clarify the 

statutory directives to the courts and the Commission that are currently in tension. Section 994 instructs the Commission not to incorporate certain offender characteristics—for example, family 

ties—into the guidelines but Section 3553(a) directs courts to consider the same characteristics. 

Accordingly, judges often determine that the guidelines have not 

sufficiently addressed offender characteristics and impose a sentence outside the guidelines. 

Third, as the Commission testified in 2005 and 2006, Congress 

should require that sentencing courts give substantial weight to 

the guidelines at sentencing and codify the three-part sentencing 

process. 

I would like to briefly mention what we have been doing in the 

last year and what we have on our plate for the future. 

In the last 9 months, the Commission has issued amendments 

that will take effect on November 1st absent congressional action. 

These amendments implemented the Fair Sentencing Act of 2010, 

which reduced crack cocaine penalties. 

The Commission also increased penalties for certain straw purchases of firearms and for offenders who illegally traffic firearms 

across the border, and we addressed health care fraud. Mortgage 

fraud is one of our priorities for the next year. 

We also hope to focus on recidivism upon reentry after prison. 

The Commission is also preparing three major reports—first, a report on statutory mandatory minimums, which should come out 

soon; second, a report on child pornography offenses; and finally, 

a report that incorporates today’s testimony on the impact of Booker on the Federal system. 

The Commission continues to code, analyze and report record 

numbers of cases—in fact, 11,000 more cases a year than when 

Booker issued. In fact, today’s hearing is based on that work. 

We train people in all the districts. I want to conclude by saying—I am catching the gavel—in conclusion, the sentencing system 

is different than that envisaged by Congress in 1984 and we think 

the proposals we offer today will make the guideline system even 

more effective. Thank you. 

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[The prepared statement of Judge Saris follows:] 


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Mr. SENSENBRENNER. Thank you, Judge. 

Mr. Miner? 

TESTIMONY OF MATTHEW S. MINER, PARTNER, 

WHITE & CASE, LLP 

Mr. MINER. Chairman Sensenbrenner, Ranking Member Scott 

and Members of the Subcommittee, thank you for holding this important hearing and inviting me to testify. 


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By all objective measures, the Federal sentencing system is drifting from a guideline-based system to one determined increasingly 

by the judge a defendant draws. A review of the district-by-district 

data from the U.S. Sentencing Commission reveals just how far we 

have strayed from the goal of relative consistency among similar 

sentences for similar crimes. 

To cite just one example from the most recent quarterly data 

from the Commission, a defendant is more than twice as likely to 

receive a below guideline sentence based solely on the judge’s discretion if he is arrested in the Southern District of New York rather than the Northern District of New York. 

These two districts are clearly not on opposite sides of the country or even on opposite sides of a state. You are talking about county lines here and you are talking about very different views among 

the Federal judges in terms of how they should sentence defendants. In terms of many crimes, you are talking about which side 

of a road you are arrested on and where you are lucky enough or 

unlucky enough to have been picked up. That is not what was intended by Congress in the Sentencing Reform Act, I don’t suspect. 

To sum up the current state of Federal sentencing, let me read 

a short quote from a congressional report. 

‘‘Every day, Federal judges mete out an unjustifiably wide range 

of sentences to offenders with similar histories, convicted of similar 

crimes committed under similar circumstances. One offender may 

receive a sentence of probation while another, convicted of the very 

same crime and possessing a similar or comparable criminal history, may be sentenced to a lengthy term of imprisonment. Even 

two such offenders who are sentenced to terms of imprisonment for 

similar offenses may receive wildly different prison release dates.’’ 

End quote. 

Although this description applies very well to current Federal 

sentencing practices under the advisory guideline system, it comes 

from the 1984 Conference Report on the Sentencing Reform Act 

and describes the dysfunctional system that existed at that time— 

a system that Congress, in a very bipartisan effort, sought to and 

did repair. 

The fact that a 1984 description of the pre-guideline system could 

arguably be applied to current sentencing practice speaks volumes 

about just how far the Federal system has drifted from the goals 

of the SRA. 

It also speaks to how another strong legislative and policy effort 

is needed to restore greater order and consistency to this generation of variable discretionary sentencing. 

At the outset, let me state that I am in favor of the guidelines 

and determinant and semi-determinant sentencing as appropriate. 

I believe the Commission and Congress should work toward a system where the guidelines are once again presumptively applicable 

in all cases. 

According to Supreme Court case law, one of the only ways that 

such presumptive effect can be achieved is through a greater reliance on when charging aggravating factors and having those factors put to a jury via a special verdict form or, in the case of a 

guilty plea, having facts admitted by the defendant. 

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Although some, naturally, question whether or how well such a 

system would work, including whether juries could make such complex determinations, I am not sure there is that much cause for 

doubt. 

Taking, for example, fraud cases in determining the amount of 

loss, juries in civil cases do this across the country every single day 

in determining damage amounts and in filling out special verdict 

forms to calculate the loss. 

In terms of aggravating factors, capital juries do this in questions 

dealing with whether life or death is appropriate in an individual 

case. 

If we can trust juries to do this in such significant cases, we can 

surely trust juries to find aggravators in cases where we are talking about a guideline range being increased or decreased by two or 

three levels. 

Although this is the reform I prefer, to be clear, such a reform 

would require more components than I just described. 

I think Congress should consider and the Commission should recommend a more modest reform in the near term. Just as the SRA 

was not achieved within a decade of the first proposal of a guideline system, it could be a while before comprehensive reform could 

be studied, assessed, enacted and implemented. 

Accordingly, there are some things that can and should be done 

now. In deciding Booker, the Supreme Court struck down two provisions in the Sentencing Reform Act that still stand as nullities 

in the statute books and the Federal judiciary must function without a statutory appellate standard or congressional guidance on 

how to apply the guidelines. This should be addressed immediately. 

Given all that needs fixing, to use a football analogy, Congress 

may want to look for a first down rather than a touchdown here. 

If nothing else happen in this Congress other than the passing of 

an appellate standard with the presumption of reasonableness for 

within guideline sentences, as allowed by United States v. Rita, 

greater uniformity would follow. 

If Congress could agree to go farther, consistent with Gall v. 

United States, and require a heightened showing for major departures from the guidelines with increased scrutiny on appeal, even 

greater uniformity would likely follow. 

At this point, 6 years after Booker struck down those provisions 

of the Federal sentencing statutes, even these modest reforms 

could go a long way. 

I submit the full statement that I or I request that my full statement be put in the record and I stand ready to answer the Committee’s questions. Thank you. 

[The prepared statement of Mr. Miner follows:] 

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ADDENDUM 


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Mr. SENSENBRENNER. Without objection. 

Mr. Otis? 

TESTIMONY OF WILLIAM G. OTIS, ADJUNCT PROFESSOR, 

GEORGETOWN LAW 

Mr. OTIS. Thank you, Chairman Sensenbrenner and Ranking 

Member—— 

Mr. SENSENBRENNER. Could you turn the mike on? 

Mr. OTIS. Thank you, Chairman Sensenbrenner, Ranking Member Scott and Members of the Subcommittee. 


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Let’s say you were in court suing the fellow who rammed your 

car. He wants to introduce hearsay statements. You object, citing 

the rule against them. 

But Judge Jones, who is hearing the case, says, ‘‘The Supreme 

Court has made the hearsay rule merely advisory and admonished 

that I, as a trial judge, can’t even presume it is reasonable. I get 

to do what I think best. Objection overruled.’’ 

You respond, ‘‘But Judge Smith down the hall doesn’t allow hearsay statements,’’ to which the Court replies, ‘‘That is true, and he 

can do that. But you are not before Judge Smith. You are before 

me and I think differently.’’ 

The motto inscribed above the Supreme Court is ‘‘Equal Justice 

Under Law.’’ Is that what anyone would think you had just received? 

Not exactly. But that is the system we have today in Federal 

sentencing. 

We pride ourselves on being a nation of law, not of men. The 

whole purpose of law is to—is to provide consistent and predictable 

rules to protect litigants from the idiosyncrasies of judges who, like 

all human beings, are subject to the temptations of ideology, temperament and taste. 

But sentencing is now the opposite of law. It is a lottery. It 

wasn’t always this way. In 1984, Congress adopted the Sentencing 

Reform Act. The principal aim of the act and the single purpose of 

the Sentencing Commission it created was to rein in irrational disparity and sentencing by establishing mandatory guidelines. 

It did and they succeeded. In the early years, judges followed 

them more than 75 percent of the time. But when the Supreme 

Court decided Booker it declared that the guidelines were to be 

viewed as, quote, ‘‘advisory only.’’ 

The result has been predictable. Within guideline sentences are 

now given a bit more than half the time. In 3 years at the present 

rate of decay, the majority of sentences will be outside the guidelines’ range and—and this is something the public should know— 

guideline departures are anything but evenhanded. Downward departures—those favoring the criminal—outnumber upward departures by more than 20 to 1. 

Many such departures are sought by the government—true. But 

even discounting for that, departures remain almost exclusively the 

defendant’s playground. It doesn’t need to be like this. 

The Supreme Court all but said in Booker that Congress could 

redesign the sentencing system to restore its mandatory character 

and Justice Souter recommended exactly that in his concurring 

opinion in Gall. 

Congress could act this afternoon to restore mandatory guidelines and the rule of law in sentencing. 

But it won’t because the Sentencing Commission has given it no 

guidance. Instead, for more than 6 years, while sentencing has increasingly slouched back toward luck of the draw disparity, the 

Commission has ignored the principal purpose for which Congress 

created it. 

But it has not been idle. It has, with all respect, compounded the 

problem by encouraging sentencing courts to consider dubious offender characteristics, like voluntary drug use, that, precisely to 

114 

avoid disparity, every previous commission had discouraged or forbidden. It has also used its time to urge Congress to lower crack 

cocaine sentences to equal those given for a less dangerous drug, 

powder cocaine—a proposal so radical that the most liberal Congress in decades overwhelmingly rejected it. 

No one has argued or plausibly could argue that the Commission 

would have been created to begin with if it were going so steadfastly to ignore its central purpose—establishing mandatory guidelines—and so breezily to accept a system as random and watered 

down as it is now. 

As the Supreme Court reminded us in Nelson, it has come to the 

point that trial judges no longer can presume a sentence suggested 

under the Commission’s guidelines is even reasonable, much less 

correct. 

It is incomprehensible that the taxpayer should continue to provide millions for the promulgation of mere sentencing suggestions—suggestions the high court itself views with skepticism. The 

Commission should either return to its main job—creating mandatory guidelines—or give the taxpayers a refund. 

[The prepared statement of Mr. Otis follows:] 

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Mr. SENSENBRENNER. Mr. Felman? 

TESTIMONY OF JAMES E. FELMAN, 

KYNES, MARKMAN & FELMAN, P.A. 

Mr. FELMAN. Mr. Chairman, Ranking Member Scott, Ranking 

Member Conyers, distinguished Members of the Subcommittee, it 


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is my pleasure and honor to appear before the Subcommittee today 

on behalf of the American Bar Association for which I serve as the 

liaison to the United States Sentencing Commission and as a cochair of its committee on sentencing. 

The advisory guideline system best achieves the goals of the Sentencing Reform Act. With continued commitment by the Sentencing 

Commission to the promulgation and revision of guidelines based 

on empirical data and research, advisory guidelines can best advance the purposes of sentencing and reduce both unwarranted disparity and its equally problematic inverse—unwarranted uniformity. 

There is no need for a complete overhaul of the advisory system 

in favor of binding guidelines driven by jury findings. I, personally, 

was the first to advocate such an approach after Blakely but before 

Booker. 

I think I have spent as much time studying that option than anyone. I do not endorse the use of that alternative. I instead believe 

that the continued use of the advisory guideline system driven by 

research and experience is the best option. 

The notion that somehow defendants are getting a break under 

the advisory guideline system is false. We still lead the world in 

incarceration and average sentence lengths have not dropped at all 

under the advisory guideline system. 

The average sentence before Booker was 46 months, and although nearly 7 years later the average is 43.3 months, the reason 

for that drop is directly attributable to two things—the increased 

number of less serious immigration offenses charged and the reduction in the crack cocaine guideline. 

Average sentences for all other major categories of offenses are 

either unchanged or higher today than they were when Booker was 

decided except for two things. In white-collar offenses, the average 

sentence for serious fraud offenses has skyrocketed from 89 months 

before Booker to 123 months today. 

Mr. Chairman, this is not a good time to be convicted of a fraud 

offense. In child pornography offenses, although they consist of only 

2 percent of Federal cases, the average sentence length just since 

Booker has increased from 75 months to 119 months. 

Since its inception, the penalties for child pornography have increased by 1,500 percent—an increase in penalties unprecedented 

in human existence. Child pornographers are not in luck to be sentenced today. 

But in any event, the advisory guideline regime is a continuation 

of the status quo in terms of average sentence length. What has 

changed is that we can be smarter about who goes to jail for how 

long because the judges now have the opportunity to meaningfully 

consider individual differences and individual aggregating and 

mitigating aspects of offenses and offenders. 

As should be expected, under any system that embraces such 

meaningful consideration of individualized considerations, there 

has been a slight increase in the percentage of nongovernmentsponsored downward departures. But what is missed by this Committee and every member of this panel is that that percentage is 

dropping. 

127 

It was 12.7 percent before Booker or a year after Booker. It is 

true that it went up to 18.7 percent at the end of last year but so 

far this year it has dropped 2 percentage points, down to 16.9 percent. 

Mr. Otis is simply incorrect when he says at its present trajectory—at its present trajectory more judges will be sentencing within the guideline range, and that range has stabilized. 

The reason is that the Commission is now promulgating amendments that are responsive to empirical data and judicial feedback. 

As the guidelines make more sense, judges follow them more frequently. 

Also, focusing only on the percentage of variances ignores the 

fact that the extent of them is quite modest and unchanged since 

Booker. This is why average sentence lengths have not dropped. 

The average variance before Booker was about a year. It is now 

somewhere between 12 months and 13 months. So focusing on percentages is really quite misleading. 

Even if there were a modest increase in interjudge or interdistrict disparity, that would not outweigh the enormous benefits of 

an advisory system nor is there an obviously superior alternative. 

The jury-driven system that Mr. Miner has described and that I 

have previously described would require ranges that are much 

wider than the present one such that all existing variances would 

actually be within-range sentences. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Felman follows:] 

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Mr. SENSENBRENNER. Thank you very much. 

The Chair yields himself 5 minutes for purposes of questions and 

a comment or two. 

The whole business of the sentencing guidelines and mandatory 

minimum of sentences has been extremely frustrating to Members 

of the Committee on both sides of the aisle. 

During my tenure as Chairman, I was very critical of judges that 

did not follow the law in explaining downward departures on the 

record and had difficulty with one judge in Minnesota who sealed 

the record when he announced a downward departure. 


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Now, we got that opened up. It required a threat of an impeachment proceeding in order to do that. I think that there is a lack 

of appreciation on the Federal judiciary and a lot of the Bar that 

Congress’ oversight responsibility extends to the judicial branch of 

government as well as to the executive branch of government. 

We don’t hear a lot about that but anytime oversight has been 

extended to the judicial branch of government, those who try to do 

it get accused of threatening judicial independence, and I reject 

that emphatically. 

It is our job to look at how these laws operate and make changes 

as we see necessary. 

Now, Judge Saris, the downward departure rate in the District 

of Massachusetts is 35.7 percent. In the Middle District of Georgia, 

it is 4.7 percent. 

Now, why should somebody who is convicted of a similar crime 

in Massachusetts be about nine times more likely to receive a 

downward departure than one who is convicted in Georgia? 

Judge SARIS. Thank you, and it is an important question that 

goes to the heart of this hearing. 

Out of the Sentencing Reform Act—Oh. Is it on—yeah. It provides and it is a key provision in there, which is the purpose of the 

Sentencing Reform Act is to eliminate unwarranted disparities but 

to create sufficient flexibility to take into account aggravating and 

mitigating circumstances not otherwise taken into account in the 

guidelines. 

Post-Booker, the Supreme Court said not once but seven times 

that judges not—should start with the guidelines as your initial 

baseline and starting point and then what you do is you must look 

at the statutory factors in 3553(a). 

And so what I am saying is when you look at the caseloads in 

different districts they may be different. 

Mr. SENSENBRENNER. Has the Commission made any analysis of 

the statements that the law requires the sentencing judge to make 

when there is either an upward or downward departure and had 

some kind of a statistical comparison of the reasons the sentencing 

judge gave that explanation? 

Judge SARIS. There is a form—a Statement of Reasons—that a 

judge must fill in stating what the guideline range is and whether 

they departed under a traditional departure—— 

Mr. SENSENBRENNER. Yeah. 

Judge SARIS [continuing]. And whether they varied. And so that 

what they are supposed to do and one of the things we—— 

Mr. SENSENBRENNER. But the question is has there been any 

comparison made by the Sentencing Commission on why there is 

such a great disparity between downward departures in your district, for example, as compared to the Middle District of Georgia. 

Judge SARIS. Well, as I have mentioned, it is very caseload specific and also there are differences between regions that have always existed. So some of it is perhaps what you are worried about. 

But some of it is, for example, if you have more crack cases or, for 

example, if you have different prosecutorial practices. 

Some of it varies by district and we have not—we have done a 

very detailed statistical analysis of the comparison and, as you 

know, we came in here today with certain legislative proposals—— 

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Mr. SENSENBRENNER. We will look at them. 

Judge SARIS [continuing]. To make sure that the guidelines are 

effective—— 

Mr. SENSENBRENNER. Okay. 

Judge SARIS [continuing]. And we are responding to this concern. 

Mr. SENSENBRENNER. A couple of questions on how the Commission operates. One is the—with the unmandatory guidelines the 

money expended by the Commission has increased 20 percent since 

the Booker decision and the Commission has two full-time commissioners at full Federal salaries, whereas the other commissioners 

do not receive a full Federal salary. Can you explain those two 

issues? 

Judge SARIS. Well, part of this is historic. When the Commission 

was first set up, everyone was full time because people were writing the guidelines. Now, we have three full-time commissioners 

who get salaries. One of those spots isn’t filled. 

Typically, sometimes in the past those were filled by judges so 

that the judge was just getting the increment in the salary. But 

right now, we have two full-time commissioners and they do what 

the rest of us do—they work hard, they go—they train and are involved in the—in the writing of the guidelines. 

If what—if what you are asking is do—is that still justified in 

today’s world, I think the Commission would feel—we actually have 

three full-time spots, not two—I think the Commission would feel 

at this point—— 

Mr. SENSENBRENNER. Okay. 

Judge SARIS [continuing]. We do not need the three full-time. 

Mr. SENSENBRENNER. Could you please send us the salary qualifications and duty description of each employee you have hired 

since you became chair? 

Judge SARIS. Yes. 

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Mr. SENSENBRENNER. Okay. Thank you. 

Gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Felman, the question of racial disparities has come up. Can 

you tell us the situation of racial disparities before the guidelines 

while the guidelines were mandatory and now that they are advisory? 

Mr. FELMAN. Of course, Mr. Scott. 


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The evidence shows that before the guidelines and mandatory 

minimums were passed in 1984 there was no gap in racial sentencing trends. So there is no evidence that—and this is in the 

Commission’s own data—there was no evidence that judges are inherently racist. 

The gap between mostly Black males and White males took place 

when the guidelines were binding and when the mandatory minimums were enacted, most notably, of course, the famous 100-to-1 

crack disparity. 

We don’t know what the disparity is now. Although the Commission’s study suggests that there has been an increase in racial disparity, they have made it very clear that they have not considered 

all of the relevant factors. 

They don’t gather the data that is necessary to do a complete 

multivariate analysis and that is why their analysis, when they 

first put it out, contained such extreme disclaimers in it. 

There is another group of researchers at Penn State University 

that looked at the same data with a more nuanced analysis and 

came to the opposite conclusion. 

The suggestion that somehow African Americans would be better 

off under a binding harsher system is somewhat perverse. This is 

the best system that they could hope for because all defendants are 

treated more fairly when there is an opportunity to consider their 

individual characteristics—— 

Mr. SCOTT. Thank—— 

Mr. FELMAN [continuing]. And the data show—I am sorry. 

Mr. SCOTT. Thank you. I just have 5 minutes. I wanted to get 

in a lot of different questions. 

On downward departures, what portion of downward departures 

are a result of prosecutorial recommendations and what portion are 

judicial decisions without a prosecutorial recommendation? 

Mr. FELMAN. Well, the prosecutorial—expressly encouraged ones 

outnumber the judge-driven ones significantly. That is almost 28 

percent. 

The 16.7 percent or 16.9 percent of nongovernment-sponsored 

gets credited to the judges but it is also important to remember 

that at least half the time or roughly half the time the government 

is not even objecting to those. 

Mr. SCOTT. Thank you. 

Judge Saris, we have been blaming the judges for the disparity. 

Has there been any study of charging policies varying from district 

to district where some prosecutors overcharge and the judges justifiably adjust for that by downward departures? 

Judge SARIS. Well, we are in the process of finalizing the mandatory minimum report which Congress has asked us for. Actually, 

we are hoping it will come out within the next month, and we did 

just that kind of study where we took various districts at random 

and we looked at charging practices across the districts to compare, 

particularly in the context of mandatory minimum sentencing, and 

we will be providing that information directly to the Congress. 

Mr. SCOTT. In this—the whole guideline system is based on violation of specific code sections. Many times a code section itself does 

not give an indication of the seriousness of the offense. 

205 

For example, a 19-year-old high school student having consensual sex with a 15-year-old high school student is the same code 

section with a 45-year-old having sex with a 13-year-old. 

How would the guidelines deal with what is obviously a differential in seriousness? 

Judge SARIS. Yes. I think you point out a very serious issue, 

which is that our guidelines piggyback on, if you will, the state 

laws where sometimes those differences are huge. 

One of the departure sections that we have is if the criminal history category either seriously—— 

Mr. SCOTT. If you have—if you have two criminal history and everything else the same—the only difference is one is 45 and 13, the 

other is 19 and 15—do the guidelines allow a significant departure 

downward to account for the obvious lack—lesser of seriousness of 

the offense? 

Judge SARIS. Well, obviously, in some—it depends if there is a 

mandatory minimum. We typically don’t get those kinds of cases 

involving that. But if your general question is can you—it is can 

you downwardly depart if you feel that a sentence is—— 

Mr. SCOTT. You have—you have—— 

Judge SARIS [continuing]. You have to provide—yes, you can in 

some circumstances. 

Mr. SCOTT. You have to depart. The guidelines would not adjust. 

Is that right? 

Judge SARIS. Right. But there are some sanctioned departures 

where that is the case. 

Mr. SCOTT. Now, Mr. Felman, what are some—you have upward 

departure and downward departure but you also have factors that 

increase the guidelines and reduce the guidelines. 

Are the—what factors are there that would cause an upward departure and are they part of the guidelines, and what factors would 

cause a downward departure and are they part of the guidelines? 

And if you have a case where there is obviously less seriousness, 

how much of a downward departure can you get? We have been 

talking about the differential between upward and downward. Is 

that part of the guidelines? 

Mr. FELMAN. Am I allowed to answer it? Well, the guidelines, obviously, contain extraordinarily more aggravators than mitigators 

and that is why there are very few upward departures. 

Most judges find the guideline range to be significantly high 

enough to accommodate the purposes of sentencing and that is why 

most of the departures are downward. 

Of course, most of them are at the government’s request. There 

are very few mitigators in the guidelines. There is role. There is 

pleading guilty. Other than that, that is about it. And so that 

is—— 

Mr. SCOTT. Seriousness—seriousness of the offense? 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. SCOTT. Mr. Chairman, can I have 30 seconds so he can answer this question—finish this question? 

Mr. FELMAN. The only way to accommodate different—— 

Mr. SENSENBRENNER. Without objection. 

Mr. SCOTT. Thank you. 

206 

Mr. FELMAN. The only way to accommodate seriousness—differences in seriousness of the offense is frequently through a downward departure. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman from South Carolina, Mr. 

Gowdy? 

Mr. GOWDY. Thank you, Mr. Chairman. 

Your Honor, I listened as carefully as I can when Chairman Sensenbrenner asked you to explain, if you could, why there would be 

a nine-fold increase in downward departures in your district as opposed to Georgia, and I didn’t hear a response. 

Can you tell me why there would be nine times more downward 

departures in your district than there would be in another district? 

Judge SARIS. Well, I think there probably are two reasons. 

First, I don’t know Georgia’s caseload but in our caseload we 

were a very crack-heavy caseload so we had a lot of crack cases, 

and I would say most of the judges in our area probably varied on 

that. 

The second thing is—I would say is I think that there are different philosophies of different judges toward variances and some 

judges varied more than others. 

Mr. GOWDY. How many upward departures were there in the district of Massachusetts? 

Judge SARIS. I don’t know that but I can—I will provide that 

data to you but I—— 

Mr. GOWDY. Well, do you think it would be similar to the 20-to1 disparity—20 times more downward departures than upward departures that is true nationwide? Do you think Massachusetts 

would be an anomaly? 

Judge SARIS. It probably—it probably would be consistent with 

that but I would have to look it up and provide it for you. 

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Mr. GOWDY. Well, let me ask you this. You will—and I don’t 

mean this to be a disrespectful question. How can we convince the 

public that the guidelines should be taken seriously when they are 

not taken seriously in your own courthouse? 

Judge SARIS. Well, I disagree that they are not taken seriously 

in our own courthouse. 

Mr. GOWDY. You are in the top ten in downward departures. 

Judge SARIS. There are approximately 25 percent of the courthouses that vary 26 percent or over and we are in that group. 

In our courthouse, we start with the guidelines. We—at that 

point, some—as I said, we had a lot of crack cases. But there were 

other reasons too. I am not trying to—I am not trying to—— 

Mr. GOWDY. You and I both know that there would be a lot of 

cocaine-based cases in Georgia as well. That is not just Massachusetts. 

Judge SARIS. I don’t know that district in Georgia. Districts vary. 

But what I can say is that the Georgia’s—the judges in our district do take the guidelines seriously, and if you look nationally 

even when you look at the rate of variances that there is a close 

gravitational pull in terms of the—— 

Mr. GOWDY. But the variances are always downward. They are 

never upward. So I guess what the public’s having a hard time understanding is you don’t ever think someone’s criminal history is 

understated? There is never a reason to go higher with a sentence 

than lower? 

Judge SARIS. Well, of course, sometimes there is. 

Mr. GOWDY. But 20 to 1—20 times more downward departures— 

not Rule 35s, not 5K 1.1s, but judicial departures 20 times more 

than there would be upward departures? 

Judge SARIS. Not to get too much into the weeds of Massachusetts law but in our state, for example, a misdemeanor is any offense that carries up to 2.5 years of imprisonment where in many 

states it is 1 year. 

So sometimes what happens is something that would be a misdemeanor and not counted in one state is in our state. So people 

downwardly vary because of that. 

So as—so that is basically there is—you have to look at the caseload, you have to look at the kinds of cases and also there is a difference in perspective. There is no doubt about it, and that is 

why—let me—can I—can I come back? 

Mr. GOWDY. Well, that is what we are trying to get away from. 

Judge SARIS. That is why we are proposing this. 

Mr. GOWDY. But that is what we are trying to get away from is 

a difference in perspective. 

The gentleman, Mr. Miner, mentioned the Southern and Northern Districts of New York and he was careful to say we are not 

talking about different parts of the country. Well, we ought to be 

talking about different parts of the country. 

That is why you have a uniform Federal system—so you won’t 

have wide disparities in Nevada and Massachusetts. 

But let me ask you—I have only got a couple minutes. 

Judge SARIS. Can I just say—I agree with that. 

Mr. GOWDY. Do you believe Congress has the authority to set 

statutory maximums? 

209 

Judge SARIS. Congress? 

Mr. GOWDY. Yes. 

Judge SARIS. Yes. Of course. 

Mr. GOWDY. Do you think Congress has the authority to set mandatory minimums? 

Judge SARIS. The authority? Yes. 

Mr. GOWDY. Do you believe Congress has the ability to limit the 

jurisdiction of the Federal courts, as we have done in the past, I 

hasten to add? 

Judge SARIS. I think it has been done. I don’t know whether that 

would—— 

Mr. GOWDY. Do you agree that—— 

Judge SARIS [continuing]. Be the case in sentencing. I actually 

would prefer not to take a position on that until I knew which context you were talking about. 

Mr. GOWDY. Well, what I am asking you is do you agree with me 

that Congress should codify the guidelines, they should be mandatory and we should go back to the good old days where you had 

upward and downward departures, where judges had to explain 

them and where you actually didn’t have these wide variances in 

sentences? 

Should Congress codify the guidelines and they have the force of 

law instead of just being suggestions, which is all they are now? 

Judge SARIS. No. What we are fighting for—we put a lot of 

thought into this. We are, as you know, bipartisan. We have Democrats and Republicans. 

Mr. GOWDY. Congress is bipartisan too, your Honor. 

Judge SARIS. Yes, that is right. And what we are proposing are 

a series of legislative adjustments to make sure that the guidelines 

remain strong and effective. We think they are important—— 

Mr. GOWDY. Do you think sentences—— 

Judge SARIS [continuing]. And we think they are better. 

Mr. GOWDY. Should sentences reflect the will of the public? 

Judge SARIS. The will of the public? 

Mr. GOWDY. Yes. 

Judge SARIS. In part. It should reflect congressional intent. I 

mean—— 

Mr. GOWDY. Well, you have—you have some states where the juries actually do the sentencing, right? 

Judge SARIS. Sure. Certainly, in death penalty cases. 

Mr. GOWDY. Well—— 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from Michigan, Mr. Conyers? 

Mr. CONYERS. Thank you, Chairman. 

Judge Saris, did you want to finish explaining to our esteemed 

former prosecutor what you were trying to get at? 

Judge SARIS. Thank you very much. 

Yes, it is good to—obviously, the congressman knows something 

about criminal law. He was a former AUSA, I guess. But what I 

was trying to say is we have looked at this data. We haven’t sat 

silently by after Booker. We have been actively monitoring what has been going on. There 

have been seven Supreme Court cases. In a bipartisan way, we 

have come together after monitoring the data actively and we have 

210 

come up with these proposals which we believe will make an effective guideline system. 

And so when you say can you make them mandatory I suppose 

you can. The Commission hasn’t taken a position on it. 

But right now, we believe that this is what would be appropriate. 

Thank you. 

Mr. CONYERS. All right. You know, we are at a hearing here. It 

is important, but the title is a little—I think should be reviewed. 

The title of this hearing today is ‘‘Uncertain Justice: The Status of 

Federal Sentencing and the U.S. Sentencing Commission Six Years 

After U.S. v. Booker.’’ 

Now, let me ask you, what is the uncertainty about justice? Mr. 

Sensenbrenner, our Chairman, raised the question of the racial factor in the American criminal justice system, which is pretty critical 

and is still pretty large. 

We have had the Sentencing Project director, Mark Mauer, before this Committee many times and has pointed out that people 

of color are more likely to get arrested, more likely to be charged 

more, more likely to get longer sentences, more likely to be incarcerated. 

So how do you react to our title versus this work I have been on 

and apparently Sensenbrenner too about the racial factor in criminal justice sentencing? 

Mr. FELMAN. If this Subcommittee is truly concerned about addressing the disparate treatment of racial minorities, there are 

some very clear ways it can do that. 

The real problems are things like the criminal—the career offender guideline that disproportionately impacts minorities—the 

way in which criminal history is handled—the crack/powder disparity remains at 18 to 1. 

Many of the mandatory minimums have a disparate impact on 

minorities. Making the guidelines binding would do nothing to address those issues and the suggestion that justice is uncertain because of differences in district data is extraordinarily complex. 

You have to look at the caseloads of these districts. In many of 

these districts with the high compliance rates they are border districts where you are talking about mostly immigration cases that 

are not very serious and the people are detained. So they are pleading out to time served. 

There is no need for a variance. They are getting time served. 

There are differences in procedures. There are some jurisdictions in 

which the probation officer and the government and the court fact 

bargain and they fit the guideline to the agreement of the parties. 

I believe the Middle District of Georgia to be one of those districts. So there isn’t any need for a variance because they crank the 

guidelines down to fit the agreement of the parties. 

In other districts, like Massachusetts, the prosecutors probably 

know that the judges may very well vary. So they overcharge. They 

charge the most serious thing. They go for every upward adjustment they can find because they probably know it is going to come 

down. 

That is why if you really want to get serious about looking at the 

reality of inter-district disparity what you have to look at is average sentence lengths, and my understanding—and there is a study 

211 

and I cite it in my testimony—is that average sentence lengths in 

terms of variations among districts is actually lower now than it 

was when Booker was decided. 

Mr. CONYERS. Well, then I want the professor—Professor Otis to 

know that we are not this afternoon going to reimpose mandatory 

sentencing. I have had a very unpleasant experience with all of the 

mandatory sentencing that goes on in this country. 

Mr. SENSENBRENNER. Gentleman’s time as expired. 

The gentlewoman from Florida, Ms. Adams? 

Mrs. ADAMS. Thank you, Mr. Chair. 

Mr. Miner, I was just reading and I noticed that Judge Copp of 

Nebraska has publicly suggested on Doug Berman’s sentencing 

website that the individual sentencing statistics for judges be published. 

And it says although it has the data and although it releases 

data by a court-by-court basis, the Commission has never publicly 

released information on the extent to which an individual Federal 

judge sentences within or outside the guidelines. 

It is important to note, you know, according to Judge Copp—in 

short, it is time for Federal sentencing judges like me to pay the 

piper. 

Do you agree and do you support the Sentencing Commission 

publishing sentencing data for individual judges? 

Mr. MINER. I do think that that should be done, whether there 

is a desire perhaps to not name the judge but to identify that within a particular courthouse in one corridor somebody is going below 

the guidelines consistently and around the corner on the exact 

same floor you are more likely to get a more serious sentence every 

single time where you have similarly situated defendants and similar crimes. 

Where you are arrested and the judge that you draw should not 

be a mitigating or an aggravating factor. We have a Federal system. There should be consistency not just in the same courthouse 

and on the same floor or district by district but across the country, 

and we are failing in that. 

Mrs. ADAMS. Mr. Otis, child porn variances are the largest compared with other crimes, apparently. Do you have any evidence or 

theories on why this is? 

Mr. OTIS. I am sorry. Could you repeat the question? I didn’t 

hear it. 

Mrs. ADAMS. The child—child porn variances are the largest compared to with other crimes. Do you have any evidence or theories 

on why this is? 

Mr. OTIS. What is that—— 

Mrs. ADAMS. Child pornography. 

Mr. OTIS. Child porn. I am actually—it has been years since I 

have been in the U.S. Attorneys Office and I am no longer conversant with particular categories of sentencing. The thing that I am 

conversant with is that in my district, the Eastern District of Virginia, is apparently quite unlike Judge Saris’ district. 

We continue to follow the guidelines about 74 percent of the time 

and I am happy to say there is equal justice going there. But I 

don’t know the answer to your specific question. 

212 

Mrs. ADAMS. Judge Saris, I listened intently as my colleague did 

when our Chairman was asking you but I never heard the answer. 

Have you looked into why there is the disparity between you and 

Georgia—your district and Georgia’s district? Have you looked at 

the variances and do you have that data and have you compiled it 

and do you have an answer? 

Judge SARIS. Yes, we do have the data of the differences between 

all the districts. 

Mrs. ADAMS. Have you looked into it? 

Judge SARIS. We have looked into it. We believe—well, we 

haven’t gone—coded for each individual judge but we have looked 

at it and we are concerned and, you know, part of—this is the 

judge—it is nothing that the judge is doing wrong. This is what the 

judge is doing in response to the Supreme Court case law. They 

must look at this data and some of it—— 

Mrs. ADAMS. Okay. Let me ask you this. 

Would you share—publish your data on sentencing for individual 

judges? 

Judge SARIS. The Commission has a policy not to release identifying—— 

Mrs. ADAMS. Why not? 

Judge SARIS [continuing]. Information with respect to individual 

judges. The judicial—I think at this point the Judicial Conference 

has that policy and we do as well. 

Mrs. ADAMS. You were recently interviewed and that interview 

was published on the Third Branch, the website of the U.S. courts. 

In the interview, you revealed that a recent study of Federal district judges found that 70 percent felt that the penalties for receipt 

and possession of child pornography were too high—a sentiment 

likely responsible, and I quote, ‘‘a sentiment likely responsible for 

a more than 40 percent variance rate.’’ 

Do you believe or have cause to believe that the enormous variance is due to a policy objection over the sentences for child pornography by the U.S. judges in question? 

Judge SARIS. Yes. I think that in child pornography what we 

have seen is a rate of variance of about 40 percent and an extent 

of variance of about 40 percent. Widespread dissatisfaction—— 

Mrs. ADAMS. Well, let me ask you this then. Do you believe that 

law enforcement of the United States as it applies to child pornography should depend on the sentiment of the U.S. judges about the 

severity of the sentences? 

Judge SARIS. Well, we have concerns—— 

Mrs. ADAMS. Yes or no. 

Judge SARIS [continuing]. About the policy. We have advocated 

that there be stricter review for policy disagreements. But also, I 

have to say, that if you see that level—that groundswell of people 

unhappy that is the obligation of the Commission to come back and 

we are doing a report on child pornography. We are going to drill 

down on that, yes. 

Mrs. ADAMS. Do you believe that child pornography is a dangerous thing for children? 

Judge SARIS. Yes. 

Mrs. ADAMS. So I think that we need something looking into this 

if you have got a 40 percent variance—— 

213 

Judge SARIS. Yes. We agree totally. 

Mrs. ADAMS [continuing]. On sentiment. On sentiment. That 

really worries me as a former law enforcement officer. 

Judge SARIS. I agree. 

Mrs. ADAMS. My time is short. 

Mr. Felman, you state that the Commission should collect more 

data. You also say that the advisory system we have now does not 

need to change. Then why do we need more data? 

Mr. FELMAN. Well, the reason for more data is to make the advisory system better so that we can study what we are doing and see 

what actually works. 

Mrs. ADAMS. Well, you wanted—— 

Mr. SENSENBRENNER. The time of the gentlewoman has expired. 

The gentleman from Florida, Mr. Deutch? 

Mr. DEUTCH. Thank you, Chairman. 

Mr. Felman, we have learned in this series of questions in this 

hearing this morning that the—that Georgia, apparently, is the 

gold standard. Massachusetts—Massachusetts, apparently, leaves 

much to be desired. 

In your testimony, you asserted that the ABA has been opposed 

to mandatory minimums for 40 years and one of the goals of the 

sentencing guidelines was to reduce unwarranted disparity in sentencing and treat similar offenders and offenses similarly. 

But, and this gets to the point of Georgia and Massachusetts 

which has seemed to come front and center here, you also argue 

there exists an equally important objective treating dissimilar offenders and offenses differently and avoiding unwarranted uniformity. 

Can you talk about the negative effect that unwarranted uniformity in sentencing has on the justice system in this country? 

Mr. FELMAN. That was the principal defect in the binding guidelines—the failure to distinguish different offenders differently and 

to treat them differently. 

It is inherent in the nature of sentencing. The mix of factors that 

could justify a sentencing outcome is as rich as human experience 

itself. It is not simply possible to write down in advance all of the 

things that you might want to look at or consider and weigh them. 

This was recognized by the Congress in the Sentencing Reform 

Act. This was recognized by the Commission in their promulgation 

of their guidelines. They did the best they could. 

But even the best system of binding guidelines is going to suffer 

from an inability to effectively distinguish between differently situated offenders. That, of course, is the principal flaw of mandatory 

minimums and the reason why the ABA has opposed them for 40 

years, the Judicial Conference and the American Law Institute for 

50 years. 

It is the logical equivalent of sentencing by temper tantrum. It 

is like we are going to look at one consideration and one consideration only, one that usually bears little resemblance or rationality 

to the culpability of the offender and base the entire sentence on 

one thing. 

The beauty of the advisory system—— 

Mr. DEUTCH. Let me—Mr. Felman, let me stop—— 

214 

Mr. FELMAN [continuing]. Is that Massachusetts may be better is 

because they may be more accurately and more fairly distinguishing different offenders and treating them differently. 

Mr. DEUTCH. Let me—let me just go back to that previous point 

that you made. Can you—can you give us some examples? 

When you talk about—when you talk about sentencing by temper 

tantrum there is a sentiment among some on this Committee that 

we ought to go back to what had previously been referred as the 

good old days where we set the sentences and judge them and so 

there is no leeway. 

Can you give us some examples—specific examples of why that— 

why that is problematic? 

Mr. FELMAN. Well, I think the crack cocaine example is the perfect example. There was a sort of a hysteria over the death of a 

basketball player that led to basically an auction where you all 

were bidding against each other on who could raise the highest 

sentences. 

It is sentencing by sound bite, and what we see is just a relentless upward ratchet—you know, what is the crime du jour—what 

does the American people want us to look like we are serious about 

today. 

And so the result was penalties for crack—for crack defendants 

where a handful of a substance would get you 10 years. It was absolutely wrong. Everyone recognized it and yet it took us almost 20 

years to fix it. 

Mr. DEUTCH. Judge Saris, proponents of mandatory guidelines 

often don’t realize that sentencing judges are giving the Commission feedback every time—every time there is a variance from the 

guidelines, and exercises of reasonable discretion in cases that warrant it. 

What happens with that feedback? 

Judge SARIS. Yes. We have 83,000 judgments last year which we 

coded, analyzed and reported on. So we start to see when there are 

variances or regional differences. Part of that goes into our guidelines. That is how we—how we implement and change guidelines. 

It also goes into the reports which we give to Congress, and we also 

respond to requests from all of you. 

So we look at absolutely every sentence, code it, analyze it and 

get it back to the public either in terms of policy or in terms of reports. 

Mr. DEUTCH. How do you use it to modify guidelines? 

Judge SARIS. How do we—— 

Mr. DEUTCH. How do you use it to modify guidelines? 

Judge SARIS. Well, one big area right now is when we were looking at the issue of straw purchases last year, for example. We 

looked at what exactly—we really went right into what people were 

doing for straw purchases of guns. 

Were they going across the border—we could find out that about 

a third of the guns were going across the border to Mexico in our 

straw purchasing cases. We were able to look at what was going 

on with—why were judges varying. 

Well, sometimes it was because the girlfriend who bought the 

gun for the boyfriend. So we were able to actually use that in pegging what—pegging the guideline. 

215 

Mr. DEUTCH. I appreciate the thoughtful response. Thank you. I 

yield back, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman from Pennsylvania, Mr. 

Marino? 

Mr. MARINO. Thank you, Chairman. 

Good morning, ladies and gentlemen. Mr. Felman, I take issue 

with your statement about prosecutors overcharging. 

I was a district attorney for 12 years and I was a United States 

Attorney for over 6 years, and one of the main goals that I tried 

to achieve and my staff tried to achieve was to seek justice—not 

to put people in prison but to seek justice. 

And I can’t remember any time in those 18 years as a prosecutor 

my staff or myself intentionally overcharging someone because of 

sentencing. 

Do you have some statistics? Do you have some information of 

which I am not aware that that is occurring? 

Mr. FELMAN. Well, and maybe I overstate the case. 

The point I was trying to make is that there are differences in 

regional practices, and maybe overcharging is the wrong word. 

They know the justice they seek and I am not suggesting that they 

are seeking results that are unjust. 

What I am suggesting is that they know in the various procedures in which they are working with how to get to that sentence 

and they know in some instances that it is necessary to push for 

a guideline range that is higher than what is just because they 

know the end result will be just because they have judges that are 

likely to vary. 

Mr. MARINO. Let me share this with you—that, again, in my 18 

years and with my staff, which was—we were in the Middle District of Pennsylvania—a top notch staff, and actually I have to say 

most if not all of the judges, I think, were perfect examples of what 

Federal judges should be. 

I know there is a variance across the country. But our specific 

goal was if we charged someone we believed that there was enough 

evidence for a conviction and that is where it ended. The judging— 

the sentencing was up to the judge with recommendations from the 

prosecutors. 

Judge Saris, you indicated in your testimony that the Commission is thinking about proposing presumptive guidelines, maybe 

like a hybrid, which would be something of a cross between advisory and mandatory guidelines. 

I have some questions about whether the presumptive guidelines 

would work or if they would satisfy the court’s concerns in light of 

Booker. But for now, when the Commission produces a plan for presumptive guidelines could you simultaneously produce a plan for 

mandatory guidelines as well? 

Judge SARIS. Well, what we have encouraged is that the guidelines be given great weight—substantial weight. We have taken 

that language out of some of the Supreme Court cases—respectful 

weight. So your—if Congress asks us to try and come up with such 

a plan we, of course, are going to work with Congress. 

We view ourselves as at the intersection of Congress, the executive and the judiciary. You—if you ask us to work with you we are 

going to work with you. 

216 

Mr. MARINO. Do you—I am asking for an opinion or your experience, not an opinion—what you have—what you have heard from 

other judges. 

It is the consensus, at least among prosecutors, that many judges 

do not like mandatory sentencing. Could you expand on that a little 

bit? And if your answer is yes, explain to me. 

Judge SARIS. I think many judges don’t like mandatory sentences 

but the Commission will be coming out with a report, and I keep 

saying that—it is actually sort of imminent but not yet final—on 

the whole range of mandatory sentencing in the Federal system. 

And so we are going to be coming out—we are going to actually 

study, if you look at the separate mandatories, how they affect different people, how—what their effect is racially as well as inconsistencies in applications across the country. 

And then, I think, that everyone will have the data necessary to 

see as a policy matter what people want to do. But I think you are 

right to say most judges don’t like them. 

Mr. MARINO. How about—what is your position on Congress taking on its responsibility of enacting legislation particularly concerning mandatories? 

Judge SARIS. What we think—and this is, as I say, it is a unanimous set of proposals—what we want at this point a strong and effective advisory guideline system and that is why we came up with 

these proposals which—it is a difficult area. 

The Supreme Court keeps ruling. But we have come up with language right from the Supreme Court case law which we think, like 

the presumption of reasonableness across the appellate courts, 

which we think will provide an effective system. So it is what we 

want you to do. 

Mr. MARINO. Chairman—Chairman, may I have 10 seconds? 

Mr. SENSENBRENNER. Without objection. 

Mr. MARINO. Thank you. If there are mandatories why is the 

Commission needed? 

Judge SARIS. If there are—— 

Mr. MARINO. If there are mandatory sentencing why is the Commission needed? 

Judge SARIS. Well, let me—at least the way they are functioning 

right now—— 

Mr. MARINO. Quickly, please. 

Judge SARIS [continuing]. It is a mandatory floor and so what we 

do which is make proportional sentences and we also take into account, you know, did you have a gun, were you a minor, a major 

role—all that. 

Mr. MARINO. Okay. Got it. 

Judge SARIS. We sort of take into account the individual characteristics of the crime, and we are asking you to help us on offender 

characteristics. 

That is a one-size-fits-all on my—— 

Mr. MARINO. Well, what I was—— 

Mr. SENSENBRENNER. Okay. Gentleman’s time has expired. 

Mr. MARINO. Thank you, Chair. 

Mr. SENSENBRENNER. Gentleman from Georgia, Mr. Johnson? 

Mr. JOHNSON. Thank you. 

217 

Is it just one of you all who have actually served as a judge, on 

our panel? Have either three of you served as a judge? Okay. And 

then—— 

Mr. SENSENBRENNER. Let the record show the other three witnesses shook their heads in the—— 

Mr. JOHNSON. In the negative. Thank you, Mr. Chairman, for the 

purposes of the record. 

And I will say that it is interesting. We have these oversight 

hearings and we come in to examine the various issues that the judiciary is confronted with and each of us have 5 minutes to raise 

our parochial concern be it child molestation or drug cases or, you 

know, whatever the case might be—disparities between circuits or 

districts, and we don’t enable you to enlighten us because we don’t 

have time to listen to you. 

We are just simply trying to get out our sound bites. And then 

based on that inexact process, we on this Committee then formulate the rules and even get to the point of micromanaging the affairs of Federal judges—people who have been to school, practiced 

law, become judges, heard numerous cases, have developed judicial 

wisdom, see the defendants coming before them. 

They have an opportunity to size them up in addition to all of 

the other factors that are on paper that are presented to the court. 

The court is then, because it has been directed to by people who 

are interested in sound bites and parochial concerns and who have 

never served as judges, never even tried a case, many of them. 

Some of them are not even lawyers, and they tie the hands of the 

judges, and make the judges into mechanical slaves to apply a rigid 

set of guidelines that often make absolutely no sense in practical 

reality and often result in gross miscarriages of justice. 

And some of that is due to the prosecutorial decisions that are 

made in terms of what to charge people with and, you know, I 

mean, that is just the bottom line. 

So we are going to have some disparities in terms of sentencing 

regardless of whether or not there is a rigid setup or whether or 

not we go back to allowing judges to do what they do, which is to, 

based on all of the factors involved, make a wise and just decision. 

Can anyone tell me why is it that our current mechanical system 

is better than the one that we had prior to 1997 where we—where 

we allowed judges to, within broad parameters set by the legislature in terms of range of punishment, sentences—when we allowed 

judges to exercise judicial discretion why is it—why is what we are 

doing now better or is it better than what we were doing back 

then? We had a sentence—we had a parole board that could make 

decisions on early release. What was wrong with that set-up that 

most states still follow? 

If I could hear from Judge Saris first and then Mr. Felman. 

Judge SARIS. Thank you. I was actually a staff member like a lot 

of the folks here on the Senate side when the Sentencing Reform 

Act first started coming through and I remember that the concerns 

were not just about regional disparities but judge disparities. 

And so this was viewed—no sentencing system is a perfect system—this was viewed as the compromise system to take sentencing 

out of politics and to try and come up with guidelines which both 

eliminated the unwarranted disparities and differences but also to 

218 

allow some flexibility to take into account the individuals, and this 

is supposed—and I think—— 

Mr. JOHNSON. Does it work better? 

Judge SARIS. Excuse me? 

Mr. JOHNSON. Does it work better? 

Judge SARIS. I wasn’t a judge before then. I was—I was—but I 

think at this point most judges are—believe that the current system is working. 

Mr. JOHNSON. Okay. All right. Let me ask Mr. Felman. 

Mr. FELMAN. I think a lot of what you have just articulated is 

the explanation for why the United States Sentencing Commission 

is more important now than ever. We have an advisory system and 

we need somebody to be giving these judges advice. 

The Sentencing Commission has the expertise and the resources 

to study that and to do it. In theory, at least, they should be removed from the political process. 

That is why I think this body ought to minimize its directives to 

them. And we may have achieved the perfect balance of allowing 

judges to be judges but be guided by the advice and empirical data 

that can be provided by an agency such as the Sentencing Commission. 

Mr. JOHNSON. Thank you. I will yield back. 

Mr. SENSENBRENNER. The gentleman from Arkansas, Mr. Griffin? 

Mr. GRIFFIN. Thank you, Mr. Chairman. 

Judge Saris, I wanted to ask you what your view is of mandatory 

guidelines as opposed to presumptive, and what if anything has the 

Sentencing Commission been doing to put out a proposal or some 

guidelines for the Congress—your view on mandatory guidelines? 

Judge SARIS. Thank you. As I mentioned in my testimony, we are 

about to put out a major report on mandatory minimum sentencing. 

We are looking at it in the drug area. We are looking at it in the 

gun area. We are looking at it in the child pornography area and 

in aggravated identity theft. Probably left one out. 

And we are going to look at how it has been applied across the 

districts—whether they are been consistently applied, whether they 

are too serious, whether they are not too serious. 

As you know, we have a strong data collection section and we are 

going to be providing Congress with the data to evaluate it and it 

should be out in the immediate future. 

Right now, we are here to talk about at least, you know, 

strengthening the guideline system and making sure that it is as 

effective as we can make it and providing advisory guidelines for 

the judges and sort of working up the area of appellate review. 

Mr. GRIFFIN. Just to clarify, you talked earlier about a plan that 

you on the Sentencing Commission have put out. That relates to 

the presumptive guidelines primarily, not mandatory, correct? 

Judge SARIS. Yes, that is correct. And I wouldn’t—I am not even 

sure I actually would describe it as presumptive because the Supreme Court has said that that is unlawful. The Supreme Court 

has been so active in this area. 

What we are trying to do—and it is sort of the questions that 

have been coming to me about why these districts variations—is we 

219 

are trying to sort of—right now, courts are supposed to look at individual characteristics of an offender as well as guideline characteristics. There is a whole array of things that you look at, and what 

we want to make sure is that judges are still giving strength—respectful weight, whatever word you want to give—to the—to the 

guidelines. 

Mr. GRIFFIN. So in terms of the Commission’s work, is it fair to 

say that you have—well, you tell me. Have you spent a lot of time 

looking for a way for a mandatory system to pass constitutional 

muster or have you been focused more on the advisory side? 

I am just trying to figure out behind the scenes where your focus 

is and whether mandatory is a part of the conversation there. 

Judge SARIS. Let me start with—of course, it is part of the conversation because Congress told us to be. And so we have been 

studying it as hard as we can and you are going to get this massive 

tome pretty soon. 

Mr. GRIFFITH. That is the right answer. No, I am kidding. 

Judge SARIS. But in terms of right now, our focus has been trying 

to examine, study, code all the judgments that come through, respond where judges are varying a lot to see if we can—we can 

make it better but also what we want to do is make sure that 

judges are giving sufficient weight to the guidelines and that is 

why right now our focus is on the guideline system—the advisory 

guideline system. 

Mr. GRIFFIN. Thank you. 

Ms. Adams, would you like a little bit of time that I have left to 

follow up with Mr. Felman? I yield to Mrs. Adams. 

Mrs. ADAMS. Thank you. 

Mr. Felman, the last question I asked you was about the data 

collection. You said you were for the data collection—that you needed more data. Well, in particular, you know, you state, you know— 

you want to know more about the exact reasons why a judge decides to give the sentence. Is that correct? 

Mr. FELMAN. Yeah. I think that—as I say in my testimony, my 

experience has been frivolous people don’t get appointed to the Federal bench in this country. They have valid and serious reasons for 

doing what they are doing, and I think we could benefit from 

studying that and learning from that. 

So if there are consistent problems with a—— 

Mrs. ADAMS. Let me ask you something. What kind of law do you 

practice? Is it defense? 

Mr. FELMAN. Primarily, yes, ma’am. 

Mrs. ADAMS. So as a defense attorney knowing how—exactly how 

and what criteria a judge needs or uses to impose lenient sentences 

could possibly help one of your clients, correct? 

Mr. FELMAN. Well, let me clarify first that—— 

Mrs. ADAMS. Because there is disparity and then we don’t have 

a good understanding as to why these judges are doing other than 

their own personal preferences at this point. So I just wonder 

would that help in deciding which courts or what judges you would 

want to be in front of. 

Mr. FELMAN. Well, I happen—— 

Mrs. ADAMS. Judge shopping. 

220 

Mr. FELMAN. I happen to be a practicing criminal defense attorney but my testimony today is on behalf of the American Bar Association. 

Mrs. ADAMS. But the question I asked was would it help in judge 

shopping? 

Mr. FELMAN. Would it help in judge shopping? 

Mrs. ADAMS. Yes. 

Mr. FELMAN. I don’t get to shop for my judges. They are assigned. What—— 

Mrs. ADAMS. But if you have certain cases would you not be better in that courtroom than others knowing how they decide their 

verdicts? 

Mr. FELMAN. Well, there isn’t any question that there are some 

judges that are more sympathetic to arguments that the guideline 

sentence is not a reasonable one. 

Mrs. ADAMS. Thank you. 

Mr. SENSENBRENNER. The time of the gentleman from Arkansas 

has expired. 

The gentlewoman from Texas, Ms. Jackson Lee? 

Ms. JACKSON LEE. Thank you, Mr. Chairman, and thank the 

Ranking Member for this important review and I would like to 

yield 30 seconds to the gentleman from Virginia, Mr. Scott, the 

Ranking Member. 

Mr. SCOTT. Thank you, and I thank the gentlelady for yielding. 

Just ask Judge Saris, you have been asked several times about the 

desirability of mandatory guidelines. 

Isn’t that exactly what Booker and the line of cases found unconstitutional? 

Judge SARIS. Well, I think what Booker found is that you can’t 

have judge-found facts to increase the maximum sentence that a 

defendant can face and at first it started with Apprendi and then 

it moved on to Booker in terms of the guideline range. 

Right now, there is, I think, a 5–4 split on the United States v. 

Harris that mandatory minimums are still constitution. So it is the 

maximum we can’t—— 

Mr. SCOTT. Mandatory guidelines—— 

Judge SARIS. In terms of mandatory guidelines they are unconstitutional. 

Mr. SCOTT. Thank you. I yield back. 

Ms. JACKSON LEE. I thank you very much, and I guess, Mr. 

Felder, I want to raise up the banner of defense lawyers and prosecutors. 

I think they all are tools of a justice system that we want to be 

proud of and I know on the Federal cases in particular, at least in 

the Southern District, you are assigned your judges and I assume 

from the location that you come you are assigned as well. 

So I want to focus on the 5–4 decision. We are glad to cite 5– 

4 decisions in many, many cases. That is the nature of the Supreme Court. 

There are nine members and so a 5–4 decision is the majority, 

and the majority made a decision specifically to indicate, if I might, 

that the—under the sentencing guidelines the provision making 

the guidelines mandatory was excised—deleted. 

221 

And I think in the wisdom of the Supreme Court that do not undertake a review of facts—they assess the arguments on the law 

and whether there was a violation of such, made a decision that 

the arbiters of the law—judges, the Federal judges, you know, in 

this particular instance—have the wherewithal to make decisions 

based upon the presentation in the courtroom. 

I am going to pose a question to you but let me—as I acknowledge the new chairwoman of the Sentencing Commission, I have to 

acknowledge my fellow Texan, Judge Hinojosa, who is here and 

thank him so very much for his service. 

We have our meetings on airplanes and so we get a lot of work 

done but it is all above board though, of course. But let me just 

pose to you that question. 

Isn’t that a very strong statement that constitutionally, legally, 

the Supreme Court made a decision to excise that mandatory provision under the SRA? 

Mr. FELMAN. Based on the principle that the Sixth Amendment 

entitles you to a jury trial, and if there is going to be a fact found 

that is going to mandate an additional penalty you have to have 

the jury decide that. 

So these discussions that we have been having today about a 

binding or mandatory guideline system, in order to be constitutional, presuppose that the facts that would be used to drive that 

guideline range would be put to a jury. And what I think there 

needs to be an understanding about is the complexity of a system 

like that and the difficulty of solving what has been presented here 

to be one of undue and unwarranted disparity. 

You are only going to be able to put a certain number of facts 

to a jury in order to keep a jury from getting completely bogged 

down while at the same time having a system that bears some resemblance to fairness. 

And so as much as I have studied that, you are going to have 

to simplify it, and when you simplify it it means that the ranges 

that result from that verdict are wider. 

And when you consider that the average variance is 12 months 

what that means is you could overhaul the system completely—go 

through all of that complexity—and at the end of the day end up 

with a cluster of sentencing results that is no tighter and, indeed, 

may even be broader. 

Ms. JACKSON LEE. Well, let me—as I go to Judge—— 

Judge SARIS. Saris. 

Ms. JACKSON LEE [continuing]. Saris—I am so sorry—there are 

mandatory sentencing such as when a jury rules or if in a mandatory context when the jury ruled and they might have a bunch of 

facts and maybe they just get something, they give a rendering— 

a judgment—and then that mandatory comes in. 

There is also a sentencing part of the trial. Is that not correct, 

Judge Saris? 

Judge SARIS. No. But there usually isn’t although it is true 

that—— 

Ms. JACKSON LEE. Well, let me—let me just say this because I 

do want to be corrected on that. What I am saying is there is an 

opportunity to present testimony by the defense on mitigating circumstances—religion, family, didn’t do it, whatever. I am talking 

222 

about in terms of the character of the defendant but the defendant 

not testify. Is that correct? 

Judge SARIS. Yes, that is—that—— 

Ms. JACKSON LEE. Okay. So what I am saying is—— 

Mr. SENSENBRENNER. Time of the gentlewoman has expired. The 

gentleman from—— 

Ms. JACKSON LEE. Can I have an additional 10 seconds for her 

to answer the question? 

Mr. SENSENBRENNER [continuing]. Nevada, Mr. Amodei. 

Ms. JACKSON LEE. Mr. Chairman, you are so rude. Thank you 

very much. 

Mr. AMODEI. Thank you, Mr. Chairman. I have nothing at this 

time. 

Ms. JACKSON LEE. You are so rude. 

Mr. SENSENBRENNER. Mr. Amodei. 

Ms. JACKSON LEE. We are trying to get something accomplished 

here and you won’t even allow—yield a Member an extra 10 seconds or 15 seconds. Let the record indicate how rude you are. We 

are in the middle of engaging and getting facts. 

Mr. SENSENBRENNER. The Chair—the Chair recognized the gentleman—— 

Ms. JACKSON LEE. We are getting facts, Mr. Chairman, and I 

was—— 

Mr. SENSENBRENNER. Well—— 

Ms. JACKSON LEE [continuing]. Posing a question to Judge Saris. 

Mr. SENSENBRENNER. Well, if—— 

Ms. JACKSON LEE. And I was not that much over my time and 

you have allowed other Members to go over their time. 

Mr. SENSENBRENNER. If the gentlewoman would bother to show 

up on time then maybe she would get all the facts. The gentleman 

from—— 

Ms. JACKSON LEE. I come on time when I am not doing anything. 

Mr. SENSENBRENNER [continuing]. Nevada, Mr. Amodei, is recognized. 

Ms. JACKSON LEE. I am in a Homeland Security Committee 

marking up to make this country safer. So don’t instruct me about 

being on time. I am glad to be here. 

Mr. SENSENBRENNER. The gentlewoman is out of order. 

Ms. JACKSON LEE. That is how responsible I am. I come to a 

Committee hearing—— 

Mr. SENSENBRENNER. The gentlewoman is out of order. The gentlewoman will sit down. 

Ms. JACKSON LEE [continuing]. When I come when I have another markup going on. You are rude and insulting when we are 

trying to get information. 

Mr. SENSENBRENNER. The gentleman from Nevada, Mr. Amodei? 

Ms. JACKSON LEE. Thank you, Mr. Chairman. You are only here 

because you are in the majority. May not last long. 

Mr. AMODEI. Thank you, Mr. Chairman. I have nothing at this 

time. 

Mr. SENSENBRENNER. Does the gentlewoman from Texas, Ms. 

Jackson Lee, wish to ask more questions? 

Ms. JACKSON LEE. I am sorry. Pardon me? 

223 

Mr. SENSENBRENNER. Does the gentlewoman from Texas, Ms. 

Jackson Lee, wish to ask more questions? 

Ms. JACKSON LEE. Thank you for your courtesy, Mr. Chairman. 

Judge Saris, as I was posing the question to get information before I move back to the Homeland Security Committee, which delayed me from coming to this meeting and they are still continuing, 

in the course of the defendant putting forward information that 

might impact a sentencing, under the advisory standards there is 

the ability of the court to assess that as well as the facts that the 

jury has assessed already. 

Is that not the case? 

Judge SARIS. Yes. That is absolutely the case in the sentencing 

portion of it. 

Ms. JACKSON LEE. So there can be, if you will, the disparities 

that would come about through mandatory sentencing that would 

not allow that kind of view from the integrity of the court. Is that 

not correct? 

Judge SARIS. Yes, that is correct. And—— 

Ms. JACKSON LEE. So why would we want to argue for putting 

in place a mandatory in light of or making these particular regulations stronger in light of Booker instead of taking advantage of 

Booker and yielding to the judgment of the court looking at the 

whole of the facts? 

Judge SARIS. Right now under Booker, you are absolutely correct 

that a judge must not—may not—may look at it and must look at 

the—all the statutory factors so that it—right now, what we are 

trying to propose is to make sure that judges take the guidelines 

seriously and then still have the flexibility to vary when appropriate. 

Ms. JACKSON LEE. You need to expand on that a little bit. 

Judge SARIS. I think what I am trying to say is right now under 

the advisory guidelines system judges start—it is a three-part system. You start with the guidelines. Then you can depart under 

guideline-sanctioned departures and then you can vary if you 

choose. 

The Supreme Court has said you must look at the statutory factors in 3553(a) and judges will look at individual offender characteristics. What we have urged the Congress to do as one of our proposals is the sentencing courts are directed to look at individual 

characteristics. The Commission has been instructed in its guidelines at least for some of the factors that those aren’t ordinarily relevant or they shouldn’t be considered. 

And so what we are trying to do is—I think some of the disconnect that we have been talking about and the differences between the districts is that some judges are—that many judges are 

looking at those guidelines because that is what the Supreme 

Court tells them to do and that they are doing their job. 

But the flip side is the Commission, and we have been instructed 

that certain things like employment and education and vocation 

and family ties and community ties shouldn’t generally be considered. So—— 

Ms. JACKSON LEE. And you have been instructed by whom? 

Judge SARIS. The Congress. It is part of our enabling statute in 

Section 994. 

224 

Ms. JACKSON LEE. Well, and now that you have the authority to 

recommend on advisory, would you not be able to recommend countering the Congress—when I say countering, recommending that 

we should—there should be an expanse to include those particular 

points? 

Judge SARIS. Well, there is a strong doctrinal tension between 

these two provisions and that is why we are encouraging Congress 

to take a look at that and basically call that. 

Ms. JACKSON LEE. But I think what confuses me is the fact that 

you are also suggesting a mandatory approach. You want us to 

mandate that don’t forget to look at character, job, associating with 

the community. Is that what you are suggesting? 

Judge SARIS. No. No. What we want people to do is take seriously the guidelines and provide for robust appellate review. 

In terms of the offender characteristics, all we are saying is that 

judges are routinely taking them into account because the Supreme 

Court told them to. 

But there is this other statute that says to us, the Commission, 

don’t promulgate guidelines based on them and that is why we are 

saying that there is this tension which may be accounting for some 

of these statistics that various people have flagged here. 

Ms. JACKSON LEE. Well, let me finish on this side of the Chairman’s now courtesy. Let me just finish on this. 

Aren’t you seeing in the crack cocaine and the letters and the review that is going on that you are able now to impact on the disparities that occurred in terms of the high numbers of African 

Americans and other minorities under that—are you seeing as this 

process is going forward, letters are going out, that you are lessening the disparity at this time? 

Judge SARIS. Yes. The Sentencing Commission took a leadership 

role on this for, I think, over 15 years and we were very gratified 

when the Congress passed the Fair Sentence Act. 

The amendment actually doesn’t go into effect until November 

1st because—— 

Ms. JACKSON LEE. But you are reviewing now, are you not? Are 

you not reviewing? 

Judge SARIS. It doesn’t go into effect until November 1st because 

you, the Congress, have the right to reject it. So that becomes the 

effective date. And if that goes into effect, it can affect as many as 

12,000 people but it first has to go through a judge who then must 

do a public safety review—in other words, to make sure that we 

are not releasing somebody who is inappropriate to be released and 

that is how it worked last time. 

Mr. SENSENBRENNER. The gentlewoman’s time has—— 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER [continuing]. Again expired. Does the gentleman from Nevada wish to ask a question or two? 

Mr. AMODEI. No thanks, Mr. Chairman. 

Mr. SENSENBRENNER. Okay. The Chair recognizes the gentleman 

from Virginia for a unanimous consent request. 

Mr. SCOTT. Mr. Chairman, I ask unanimous consent to enter into 

the record letters from FAMM (Families Against Mandatory Minimums), the NACDL (National Association of Criminal Defense 

225 

Lawyers), Federal Defenders, and the Constitution Project, all in 

support of the advisory system. 

Mr. SENSENBRENNER. Without objection. 

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Mr. SENSENBRENNER. There will be no further business to come 

before the Subcommittee and by unanimous consent the Subcommittee stands adjourned. 

[Whereupon, at 11:43 a.m., the Subcommittee was adjourned.] 


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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD


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f 


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f 


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Response to Questions for the Record from 

the United States Sentencing Commission 


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RESPONSE TO QUESTION 7 


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Æ 


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