Friday, October 13, 2000

1. According to Commissioner Steer's testimony, deportation of aliens is the reason most often given by judges for downward departures. His testimony shows that the districts that lead the nation in rate of downward departures are Arizona and San Diego. The caseloads of those districts and others that border Mexico have dramatically increased over the past eight years due to the Clinton Administration's resoundingly successful efforts to patrol our borders more effectively and bring more border-related prosecutions in federal court to deter illegal immigration and drug smuggling at the border. This extraordinary increase in caseload has not been matched by an equal increase in prosecutorial and judicial resources. Thus, border districts have implemented so-called "fast-track" programs by which departures are granted as an incentive for defendants who commit border-related crimes to resolve their cases quickly and with a minimum of resource-consuming litigation.

a. Contrary to patently partisan accusations that there is a nationwide trend among our federal judges and that Justice Department to ignore or defeat the guidelines, do these facts suggest that the spike in the rate of increase of departures is due to districts trying to develop strategies to address increased emphasis on border-related law enforcement?

b. Commissioner Steer's statistics show that the Eastern and Western Districts of Washington, districts which border Canada, are among the districts that lead the nation in rate of downward departures. Is the high rate of downward departures in those districts attributable to border-related issues as it is in the southwestern districts?

c. What would the rate of sentencings within the applicable guideline range be since 1990 if border districts were eliminated from the calculation?

Response: (a.) It appears that judges are overwhelmingly sentencing cases within the guideline range if substantial assistance departures are disregarded. Judges impose sentences within the guideline range 82.1 percent of the time. This percentage has decreased only very slightly from 84.0 percent in fiscal year 1997. The figures for the southwest border districts tend to skew the total percentages, and more departures have resulted because of the exigencies created by the huge number of cases and too few resources. If we omit both cases receiving substantial assistance departures and the southwest border districts from our analysis, we find that 86.8 percent of cases sentenced throughout the country are sentenced within the range prescribed by the guidelines.

Response: (b.) The high rate of departure in the districts of Washington also appear to be affected by border-related issues. Immigration offenses comprise 33.8 percent of the caseload in the Eastern District of Washington, and courts in that district depart from the guidelines in 84.4 percent of their immigration offense cases. Downward departures for immigration offenses thus account for 69.8 percent of all of these departures. The district departure rate excluding immigration offenses is 18.6 percent.

The Western District of Washington has a smaller immigration caseload, 14.7 percent of its cases, but the effect of these cases on its departure rate is similar. Courts in the Western District of Washington depart from the guidelines in 78.8 percent of their immigration offense cases, which accounts for 44.0 percent of all of their departures. The departure rate for the district excluding immigration offenses is 17.2 percent.

Response: (c.) See Exhibit 1 and Exhibit 2, attached. Exhibit 1 shows the national downward and upward departure rates from fiscal year 1991 through fiscal year 1999, excluding the southwest border districts and excluding cases from the remaining districts in which the defendant received a substantial assistance departure. Exhibit 2 shows the national downward and upward departure rates for the same time period, excluding the southwest border districts only.

2. As United States Attorney Denise O'Donnell testified at the hearing, the nation is divided into 93 geographic federal districts each headed by its own United States Attorney. The districts are not identical. The types of crimes that predominate in one district may be very different from another district. Each district has its own law enforcement priorities and a unique relationship with state and local law enforcement. While the Sentencing Guidelines serve the goal of sentence uniformity, the provision for downward and upward departures in Guideline Section 5K2.0 recognizes that some flexibility is necessary so that the sentencing judge in an appropriate case can account for compelling and otherwise unaccounted-for circumstances. Is some degree of disparity inevitable and acceptable in a nation as disparate as ours, and does Section 5K2.0 reflect the wisdom that room for some flexibility is an essential ingredient in a fair sentencing scheme in which the American people can have confidence?

Response: Congress recognized in the Sentencing Reform Act that some flexibility is necessary in the sentencing guideline scheme. One of the fundamental responsibilities of the Commission, as set forth in 28 U.S.C. § 991(b)(B), is to establish sentencing policies and practices for the Federal criminal justice system that "maintain[] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices." This portion of the Sentencing Reform Act is reproduced in USSG 5K2.0. The purpose of the guidelines is not to eliminate disparity, but to avoid "unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct." Id.

3. The claim has been made by some that the number of appeals taken by the Justice Department has not increased commensurately with the increase in the rate of downward departures. That claim ignores that the increase in downward departures is largely due to policies and practices in border states to deal with caseloads resulting from increased emphasis on border-related crime. That claim also ignores United States v. Koon, 518 U.S. 81 (1996), in which the United States Supreme Court made it more difficult to appeal a downward departure by holding that appellate courts should only overturn a departure where the sentencing judge makes a mistake of law or abuses discretion. Mr. Kirkpatrick testified at the hearing that there are ways of assuring compliance with the Sentencing Guidelines other than taking appeals in particular cases, such as working with the Commission to resolve conflicts among the circuit courts of appeal about interpretation of the guidelines.

a. If border-issues and Koon are considered, has there in fact been any significant change in the rate with which the Justice Department takes appeal from downward departures?

b. What are the ways in which the Justice Department endeavors to assure the effectiveness of the Guidelines other than taking appeals from downward departures?

c. Should the Justice Department's policy be to pursue an appeal of every downward departure no matter the circumstances? What factors does the Justice Department consider in determining whether or not to pursue an appeal from a downward departure?

Response: (a.) These factors appear to account for much of the difference. As an appellate judge I am aware that an appellant is more effective overall by focusing on the most significant cases.

Response: (b.) By actively participating in the ongoing work of the Commission through its ex officio member and by providing expert commentary and testimony throughout amendment cycles.

Response: (c.) These are issues more appropriately addressed by the Department of Justice itself.

4. Ms. Hernandez expressed concern about relentless attempts by some to ratchet up the Guidelines and create unduly harsh sentences with an intended racially disparate impact. Mr. Kirkpatrick in his written testimony expressed concern that our federal prison population continues to grow even as the crime rate decreases. Indeed, the population in our federal prisons has almost doubled in the last five years, and there are now about two million people in our nation's federal, state and local jails.

a. Is there reason for concern that our sentencing laws have become too harsh and retributive?

b. Is the Sentencing Commission as sensitive to unduly harsh sentences as it is to inappropriately lenient ones?

c. If application of the Guidelines creates an unintended racially disparate impact, what steps should Congress take to address that impact?

Response: (a. and b.) Some say that the guidelines are too severe, but others say that certain guidelines are too lenient. Feedback from southwest border judges that the illegal reentry guideline is disproportionately severe, has caused us to examine that guideline this amendment cycle. On the other hand, the Commission has received public comment for many years that the economic crimes guidelines are too lenient. As a result, we hope to complete a comprehensive review of the economic crimes guidelines this year. The Commission must also respond to congressional directives to increase penalties in certain areas. For example, in the past few weeks Congress has passed legislation directing the Commission to increase penalties to certain methamphetamine, amphetamine and ecstasy offenses, as well as human trafficking offenses.

Response: (c.) It is our responsibility always to keep in mind the goals of the Sentencing Reform Act, and this Commission is sensitive to the issue of disparate racial impact. We expect to study that issue as part of our 15 year review, and we will of course share any resulting data or recommendations with Congress.

5. The Supreme Court in Koon held that the sentencing judge is in the best position to evaluate whether a departure is warranted, and any departure should be reversed on appeal only under very limited circumstances where, for example, the judge abused discretion or made a mistake of law. Some say that Koon is good for the system because it supports the authority of judges to fashion an appropriate sentence where there are unforseen or compelling circumstances. Others have suggested that the Congress should pass legislation that would effectively overrule Koon. What factors should the Congress consider in evaluating the wisdom of a legislative effort to statutorily overrule Koon, including, for example, the increase in federal appellate litigation?

Response: In my opinion the Koon decision has helped win over many judges to embrace the guidelines system and sentence within it because they know that under Koon they are also able to react to unique or extraordinary circumstances not foreseen by the system. The guideline system is well developed and sound, but it cannot possibly anticipate all circumstances that will arise. Today there is generally a high rate of compliance with the guidelines.