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

February 10, 2005

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Mr. Gohmert. Thank you, Mr. Chairman.

If you will pardon me, I read the Booker opinion in total last night for the first time and it seemed to me that was a muddled mass of murky malarkey, I am telling you.

Judge, you had indicated at one point in your opening statement that one thing that seemed clear, I am telling you, I didn't see anything that looked real clear. And when you have judges that come out with the Blakely decision, give indications of one thing, and then come back with a decision in which Stevens delivers the opinion for himself, Scalia, Souter, Thomas, Breyer delivers the opinion for O'Connor, Kennedy, Ginsberg, and himself, then Stevens delivers a dissenting opinion for himself and Souter and Scalia, and then Scalia gives a dissenting opinion, Thomas gives a dissenting opinion, and then Breyer gives a dissenting opinion in part for himself and Chief Justices O'Connor and Kennedy, it seems to me that if they wake up on a different side of the bed one morning, we have got a whole new decision come 6 months or a year from now and that is rather disappointing that Justices come down that way.

Obviously, you are in favor--you say you appreciate the guidelines, in effect. Is there any polling data of where the Federal judges, the district judges stand on their support for the guidelines or wish they would go away back like they were 20 years ago when you first started?

Judge Hinojosa. Well, I guess that is a subject of discussion among judges on a pretty regular basis. Yes, I guess there have been studies in the past, and the support varies, I guess. But I will say that privately, judges probably express more support for a guidelines system than is the public aspect of the discussion, for the same reasons that I have stated. It is the most difficult part, as you know, that a judge does with regard to their job and you do want to be consistent. You want to be transparent with regard to due process and having the defendant, as well as the public, know what factors are being considered with regard to sentencing.

And a guidelines system, whether it is a State or Federal system, provides that guidance and that public discussion with regard to the issues that are being considered by the judge in making the determination.

You have mentioned something about the Booker case and I will say that there has been a quote of Ricky Ricardo, and I will say that sometime when I first read the Booker decision, I guess one comment I would have made would have been, ``Ay carramba,'' to quote Ricky Ricardo. But as you read it more, you do see the themes that come across with regard to at least that the guidelines need to be considered and certainly consulted with and determinations made in order for a judge to make the ultimate sentencing decision on a 3553(a).

But as you well know, any decision--as a judge, the system, when it first came into effect, probably did not have widespread judicial support. But I do feel that there is more support for it than is sometimes evident in the public.

Mr. Gohmert. Dealing with the murkiness as we have it, or at least I see it in this opinion, I was curious, with regard to the guidelines and their apparent position that if it is a factor that takes it outside the range, then it has to be found beyond a reasonable doubt by a jury or agreed by the defendant, do you see the possibility of a system in which, like some States, like Texas has a bifurcated system. The defendant can waive a jury on sentencing so that that is when judges sentence, but not necessarily having a jury assess the sentence, but if there are factors of which the prosecutor is aware that may push it up beyond the guidelines, then as soon as a jury finding came back finding the defendant guilty, immediately move into a bifurcated portion in which the jury would determine then beyond a reasonable doubt any of those factors the prosecutor wished to pursue? Do you feel like that would be too troublesome?

Judge Hinojosa. Actually, some judges were doing this post-Blakely but pre-Booker and there were some judges who were supportive of this. Judge Sven Holmes in Oklahoma is a prime example of that. And some judges felt that they could work with that.

It is more cumbersome, as you know, Judge, having practiced in the State courts of Texas, to have the guilty-not guilty phase and then also the sentencing phase. It is something that could be worked with. Obviously, it would require rule changes with regard to the rules of criminal procedure. It would require changes with regard to how we do business on a daily basis. It would, in some cases where you have a heavy criminal load, maybe present some issues with regard to resources, including time resources.

It does also create some other possibilities, which would mean that prosecutors and defense attorneys could probably control the sentences a lot more because they could make stipulations with regard to what they had agreed on, and then the judges and/or juries would have less to say about sentencing because there would be more stipulations between the prosecution and the defense attorneys.

Mr. Coble. The gentleman's time----

Mr. Gohmert. May I do one follow-up?

Mr. Coble. Very quickly, if you will, Mr. Gohmert.

Mr. Gohmert. To Mr. Wray, what the Judge got to was something I was wondering about, if you did have that threat of an additional part of the trial, if that might not lead to more agreements immediately after a finding of guilty, an agreement to waive the jury on the additional issue and give prosecutors yet another tool to bring about an agreement prior to sentencing. Do you see that as a possibility?

Mr. Wray. Congressman, I think we believe that the sort of bifurcated system that you are describing, as Judge Hinojosa mentioned, some judges were doing that and our offices were having to deal with that in some districts, is likely to, in a way, generate more disparity, because as he indicated, it puts control in the hands of the parties and you are having people making calculations about whether or not they want to run a risk with a jury pool in this State versus that State, and so I think you would probably end up with significant geographic disparities and major logistical and resource nightmares.

Mr. Gohmert. But would you support it or not?

Mr. Wray. Well, I am not in a position here today to be able to endorse a specific legislative proposal----

Mr. Gohmert. Not on behalf of your office, but you personally. [Laughter.]

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