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

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

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Mr. Lungren. Thank you, Mr. Chairman.

It is a pleasure to be here with these distinguished panelists. As one of the fathers of the sentencing guidelines, I originally got involved in the process when I was visited by a young woman who was a constituent of mine in my previous district who had been sentenced by a Federal judge to an extraordinary sentence for certain marijuana possession which was so out of sorts with what other people were getting and so out of sorts with what violent criminals were getting that I began to investigate this and worked with others to set up the sentencing guidelines system, which until the Supreme Court gave us its very clear decision, I thought was working relatively well, certainly in comparison to what we had before. The great disparities we saw in the Federal system were largely eliminated. There was some consistency.

I just remarked to my friend from Michigan that the problem with respect to crack cocaine-powder disparity is really not one of the Sentencing Commission, it is complete direction by this Congress. I can recall when we made that decision brought to us by, with all due respect, members of the other side of the aisle, Congressman Bill Hughes of New Jersey and Congressman Rangel, who came together and said that crack cocaine was killing their communities, was a scourge on their communities, and we needed to do something about it and we needed to create far greater penalties for crack cocaine than we did for powder cocaine.

We reacted in response to that direction given to us by Representatives in this institution who were representing people from those communities and listening to the cries of the people in those communities which were being devastated by it. So it ought to be Congress that revisits it after 15 years rather than putting this on the Sentencing Commission and any suggestion that that is one reason why the Sentencing Commission decision by the Supreme Court was a good thing, I think ought to be recalculated.

Here is my question to the panel and it is a very simple one. The Sentencing Commission was specifically established for purposes, and the guidelines, for purposes of getting rid of disparity, giving a certainty to the system, giving some expectations that would be realized by those in the system, both those charged with crimes and the victims of crime.

Given what we have now, that is, the result of the Supreme Court decision, other than the bifurcated system that we have dealt with in California and other States in capital cases, how are we really going to deal with this? The way I take it from the Supreme Court, they have said that we want the Federal judges to take the guidelines seriously, but not that seriously, because if they consider it that seriously, it is unconstitutional. So long as it is an 80 percent seriousness, it is constitutional, but if it is 100 percent seriousness, it is unconstitutional.

Am I wrong on that? What do we have left? It reminds me of some people who--well, I won't go into that.

Let me just ask the four of you, and I know we have a short period of time, what can we do? I know you gave us time constraints or time imperatives, but essentially, in very short order, what can we in Congress do, or do we need to do anything
now that the courts are at least trying to react to this?

Mr. Bowman. Mr. Lungren, if I might respond to that, I don't know if perhaps you are addressing it to someone else.

Mr. Lungren. All four of you.

Mr. Bowman. Congressman, I think that, in fact, there are a lot of smart people out there trying to figure out how to respond to this and I think that there are--including the folks on the Constitution Project, Attorney General Meese, Professor Heymann, and the judges and other folks on that group, and there are a lot of other groups out there thinking very hard about this. And I can tell you, although I can't go into the details because of time, but there are a number of proposals being worked through that would combine the concerns--addressing the concerns of Congressman Flake about simplifying the Federal sentencing system and Federal criminal laws with meeting some of the concerns expressed by Justice Scalia in Blakely and also addressing the alternative constitutional model put forward in Booker.

There are some folks out there working very hard who I think, if given some time, can actually present to you some reasonable proposals that can try to bring together and address a number of these problems.

Mr. Collins. Congressman, I think the case for delay is a weak one. If we think of the Sentencing Commission and the sentencing guidelines as the vehicle for Congress's accomplishing the goals of Federal sentencing policy, Booker is the equivalent of a flat tire. And while we stand by the side of the road, it is not time to argue about reupholstering the interior, painting the vehicle. We need to get it moving again, and it is very simple what to do. You simply remove the caps--that would make the system constitutional. If other issues want to be revisited, people can revisit those. But this system needs to get moving again in the direction of accomplishing what we all know from the pre-Booker period it was accomplishing what Congress wanted it to do.

Judge Hinojosa. Congressman Lungren, I guess in some ways Professor Bowman has been more successful than he thinks he is, because to a certain extent, the Booker decision gives us topless guidelines.

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Mr. Coble. We will resume our activity here.

Mr. Lungren, I think you had the floor and you were examining the witnesses. You may continue.

Mr. Lungren. The Chairman is very generous in his use of the word ``examining.'' I am being very nice. I am just asking. I think the Judge was responding.

Judge Hinojosa. That is correct, Congressman. What I was saying was that Professor Bowman has probably been more successful than he would like to admit in that under an advisory guideline system, if you consider the Sentencing Reform Act factors, you could go to the top, the statutory maximum. We also can go to the bottom.

The Commission's position has been that in considering and consulting the guidelines as Booker requires and as certainly the Sentencing Reform Act itself states, you should consider the guideline ranges, applicable guideline ranges, the policy statements as the Act itself requires, then make determinations under the guidelines system, and then determine in consideration of the Sentencing Reform Act 3553(a) factors if you are going to stay within the guidelines system, including the policy statements, or going outside of the system.

But in many ways, we do have topless guidelines for those that are interested in that. The issue then becomes with regard to whether appellate review should be the same for guideline sentences versus non-guideline sentences since it is above the guidelines, below the guidelines, departures within the guidelines system, and that is certainly something that Congress will eventually decide. If not, the appellate courts are also going through that at the present time and we are already seeing some decisions at the appellate court level with regard to the review that is being used with regard to the sentence.

Mr. Wray. Congressman, I think, if I remember correctly, the question as you had posed it was sort of what can you do in the wake of Booker, and I think what I would say, in addition to what the other witnesses have already said, is a couple of things.

You could address the courts' ability that they now seem to have in the wake of Booker to consider what would otherwise be prohibited factors in sentencing, something I mentioned earlier in my testimony. You could address the cooperation issue, which is so important to areas of criminal enforcement that are very important to every member of this Committee and every member of this country. You could address the appellate review standard, this reasonableness issue which we think will result in less rigorous and less consistent appellate review. You could--and I think that is a very important issue to cover.

I think there are some other variations that have been discussed already by some of the other members of the panel. There are things that can be done like a topless guideline system, but that may not be the only way. There may be things that can be done as long as we work collaboratively together and the Department would like to work with the Congress on that in a way to come up with something that would lead to the best interest of the public.

Mr. Lungren. Thank you very much. Mr. Chairman, my concern is that I thought that the guidelines within the large ranges that we gave from Congress were the best way to address the situation. Now the Court has put us in the situation where a response by Congress may be to increase the minimum ranges that we have statutorily as a way of making sure that the Federal system doesn't do what we feared before, which I don't think is a good thing. And so we are sort of in a dilemma now where I thought we had a system that worked pretty well to ensure that we had consistency but yet, with maybe some exceptions that ought to be examined by the Congress on due penalties attached. I am not sure the Supreme Court thinks about those things, that the reaction of Congress might be just exactly the opposite of what they are concerned about. Thanks very much.

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