Mr. Chairman and distinguished Members of the Committee:

I am grateful for your invitation to speak today about improving implementation of the Federal Sentencing Guidelines. The question posed in this hearing is whether the Guidelines are being followed. Increasingly they are not. Indeed they are on the brink of being effectively nullified by rampant downward departures. That trend must be reversed.

Mr. Chairman, under your leadership, but with strong bi-partisan support, Congress took a giant step for the rule of law by adopting the Sentencing Reform Act. Among the Act's principal purposes were to promote more uniformity in sentencing, so that the length of the sentence would no longer so much depend on the draw of the judge, and to require more serious sentences for particularly dangerous crimes.

To achieve those objectives, the Guidelines intentionally cabined the previously sprawling authority of judges to impose sentences almost entirely without established standards. At the same time, Congress realized that there would be the occasional rare case featuring some factor the Sentencing Commission had not adequately considered. In such a rare case, but only then, it allowed the judge to depart from the guidelines.

In the late 1980’s and the early 90’s, the federal criminal justice system implemented this new approach with great success, despite significant resistance from some judges and many members of the criminal defense bar. By and large, rules-based sentencing prevailed. In recent years we have seen how that approach has paid dividends, to the great benefit of our citizens. Hundreds of the most dangerous criminals are now serving substantial prison terms with no parole -- and not surprisingly the crime rate has been heading down.

One key part of this accomplishment was keeping unwarranted downward departures in check. The Sentencing Commission, the federal judiciary, and the Justice Department all played critical roles in doing so.

First, the original Sentencing Commission, under the leadership of Judge Wilkins, understood the peril that free-floating departures posed to the central purposes of a determinate sentencing system. It wrote the Guidelines and their Commentary to steer district judges away from departing except in rare and clear-cut cases.

Second, with some notable exceptions, district judges accepted these new limits on their discretion. Admittedly with an occasional nudge from the courts of appeals, they came to recognize that the Guidelines preserve a place for reasonable discretion in sentencing even as they shift the balance toward more consistency and accountability. They came to realize, in other words, that the rule of law was better than the luck of the draw.

And finally, the Justice Department demonstrated its determination to meet the resistance it knew the new regime would face from practitioners who had grown used to operating the old way. The Department recognized, as Judge Wilkins once noted, that the battle cry of the criminal defense bar would be, "depart, depart, depart," and that its response to excessive departures should be "appeal, appeal, appeal." For this reason, through the early 1990's, the Department and the U. S. Attorneys offices were aggressive, and largely successful, in taking appeals of excessively lenient sentences.

But trouble is brewing. The Guidelines are being increasingly swallowed by downward departures. These departures, both in absolute numbers and as a percentage of all sentences, have increased every year from 1992 through 1999. At the beginning of the 1990’s, sentences were imposed within the guidelines range in about four-fifths of the cases; by last year, it was less than two-thirds. The current guidelines compliance rate is, in other words, a little above 60%. That means that, as we speak, we are perilously close to sliding back to the subjective, idiosyncratic and gratuitously lenient sentencing of the old system -- but less honest than the old system, because the public has been led to believe that now we have rules, when increasingly, as a practical matter, we don't.

This slide, however, has not been uniform. In my own jurisdiction, the Eastern District of Virginia, it is nowhere in evidence. While the national Guidelines compliance rate hovers above 60%, in the ED of VA it is above 90%. And while nationally, downward departures not linked to a defendant’s cooperation are given in about 16% of the cases, in the ED of VA they are given in fewer than 2%.

What are the reasons for the national slide, and why has the Eastern District of Virginia escaped it? The slide began when the Commission whose term recently ended replaced clear guidance about the limited role of departures with more ambivalent language, creating increased wiggle room for judges who wanted to take it. In many jurisdictions they did. Fuzzy language in the Guidelines expanded it into gigantic new loopholes, and downward departures sprang up for novel reasons that ranged from the questionable to the absurd (in one case I litigated, for example, the court departed downward because the defendant was overweight). Meanwhile, the Justice Department showed no serious determination to combat these trends by taking the necessary appeals.

Despite the lack of leadership from the Sentencing Commission and the Department, the Eastern District of Virginia has avoided this quiet but ominous trend. This is so for two principal reasons. First, our Court of Appeals has demonstrated a clear willingness to correct unwarranted departures. Chief Judge Wilkinson, together with other leaders on the Court such as Judges Wilkins, Williams, Luttig and Traxler – and until his recent death, the great Judge Donald Russell -- have been uncompromising in requiring district courts to apply the guidelines in letter and in spirit. And second, our outstanding U.S. Attorney, Helen Fahey, has maintained the commitment of her predecessors Henry Hudson and Richard Cullen to public safety, the rule of law, and in particular to the implementation of the Guidelines which serves both. Our 90% guideline-compliance rate is largely the result of these two factors.

If it chooses, the new Sentencing Commission can play a significant role in controlling the epidemic of downward departures. What the experience of the Eastern District of Virginia suggests, however, is that even if the Commission neglects these matters, the Justice Department can do much on its own by a more resolute commitment to appealing. With the circuit courts generally ready to stand behind the rule of law, in sentencing and elsewhere, it is particularly curious that the Department is taking fewer and fewer appeals of departures just as the need to appeal has become greater and greater. In fiscal 1999, the number of downward departures had ballooned to more than three times the number six years earlier, yet the number of government appeals dropped by almost half. The figures speak for themselves: out of more than 8,300 downward departures that year not owing to the defendant’s assistance, the government appealed 19 times, or less than one quarter of one percent. Since the Administration came to power, there have been more than 32,000 such unappealed downward departures.

This is an alarming number. Every downward departure means another criminal back on the street before he would have been had the Guidelines been followed -- back on the street to rob your bank, hijack your car, or sell drugs to your child. Yet, over the last seven years, the Department’s efforts to constrain these departures have all but vanished.

Mr. Chairman, even the best of laws is no more effective than its enforcement. The Sentencing Reform Act is in my view – a view formed through more than 20 years as a federal prosecutor – among the best of laws, because of the fairness, consistency and visibility it has brought to sentencing, and perhaps even more because of what it has done to depress the crime rate and secure for our citizens their right to live in peace and safety. Congress has done its job; it’s time for the Sentencing Commission and the Department of Justice to do theirs as well.

I shall be pleased to take your questions.

Appendix: Additional Specific Recommendations

There are a number of specific changes that would be helpful in putting the Sentencing Guidelines back on the right track.

• The courts of appeals should have a stronger hand in reviewing departures. Specifically, they ought to be enabled to undertake de novo review, rather than the more deferential review required under the abuse of discretion standard. Implementing this change would require legislative correction of the holding in Koon v. United States, 518 U.S. 81 (1996). In that case, the Court held that the Sentencing Reform Act, and particularly language in 18 U.S.C. 3742, indicated that Congress intended the Act to preserve broad discretion in the district courts. While broad discretion may well be appropriate in many areas, experience has shown that the courts of appeals are more vigilant in safeguarding the determinate sentencing system whose creation was Congress’ principal goal in adopting the Act.

  Since Koon was based on the Court’s perception of congressional intent, Congress is free to change the result in that case. In doing so, moreover, it will support the Administration’s view, which, as its brief in the Supreme Court demonstrates, likewise would have preserved the relatively stronger hand of the appellate courts.

• Specific kinds of departures should be more closely regulated. In recent years, the criminal defense bar has sought to make increasing use of downward departures for “post-offense rehabilitation.” While genuine rehabilitation ought to be encouraged and rewarded, this sort of departure is subject to manipulation, and should be applied with far greater caution than it is now.

  As things stand, when a client appears in his attorney’s office, indictment in hand, the wise attorney knows then and there that it is time to start preparing for sentencing. Increasingly, part of the preparation is to have the client visit persons called “mental health professionals” or other sorts of “counselors” who will produce reports at the right moment attesting to the client’s new-found understanding that his previous ways of living were wrong. In addition, the attorney is likely to sign up the client to participate, or at least to say he is participating, in some sort of charitable endeavor. This too is designed to produce a letter to be put on display at sentencing as evidence of the defendant’s new and improved behavior.

  To a judge who dislikes the guidelines sentence, or who for some reason views the defendant as sympathetic, the “post-offense rehabilitation” file, duly compiled by counsel but not necessarily attesting to anything like authentic rehabilitation, provides a nearly fool-proof method of circumventing the guidelines.

  Sentencing SHOULD reward real rehabilitation. It should not reward, however, what is far too often simply an attempt to game the system. Accordingly, the Commission should adopt the following rule: (1) When a defendant takes substantial steps to rehabilitate himself before he has reason to believe that the authorities have learned or are about to learn of his involvement in the offense of conviction, a downward departure may be appropriate; (2) When a defendant takes substantial steps to rehabilitate himself after that time, but before he is indicted, arrested or otherwise formally charged with the offense, a downward departure is ordinarily inappropriate, and may be allowed only on clear and convincing evidence that his efforts at rehabilitation were undertaken for the purpose of producing a genuine change in his criminal behavior and not for purposes of litigation; (3) When a defendant takes steps toward rehabilitation only after he has been indicted, arrested or otherwise formally charged with the offense, a downward departure for rehabilitation is impermissible.

• Current language in the Guidelines permitting a departure based on a “combination of factors” should be revised to prevent abuse. Some years ago, the Commission added Commentary to the effect that, even if no single ground for departing would be adequate to justify a below-the-guidelines sentence, in an unusual case, a “combination of factors” could be adequate grounds to depart.

  This language permits guidelines circumvention. It all but invites a judge who still tacitly (or sometimes not so tacitly) supports luck-of-the-draw sentencing to grant a downward departure based on a laundry list of misfortune, or what will be portrayed as misfortune, even though no single factor would warrant more lenient treatment than some other, similarly situated defendant would get in the courtroom down the hall. This is exactly the kind of disparity the Sentencing Reform Act was written to stop.

  There may be some extremely unusual case in which a “combination of factors” legitimately warrants a departure even where no single factor would. But the current Guidelines language goes too far. As the Fourth Circuit noted in United States v. Withers, 100 F.3d 1142, 1148 (4th Cir. 1996), allowing departures on this sort of basis effectively “‘resurrect[s] the pre-guidelines regime of discretionary sentencing.’ (quoting United States v. Pullen, 89 F.3d 368, 371 (7th Cir. 1996)). To set such a low threshold...would create incentives for defendants to comb their personal circumstances in order to find evidence of hardship and misfortune. This search, we suspect, would almost always be fruitful given that adversity in its infinite variety comes with the journey of life.”

  Even more than others, persons convicted of criminal behavior need — for their own good and ours — to turn away from the culture of grievance-building and excuse-making and join the culture of personal responsibility. The “combination of factors” theory of departures looks in exactly the wrong direction. The Commission should study this problem, or be directed to study it if needed, and devise more disciplined language that will end this loophole.

• The Commission should publish a Crime Impact Statement with each proposed revision of the Guidelines sent to Congress.

  When courts have employed their discretion to depart, the results have not been even-handed. Downward departures outnumber upward departures by the astonishing ratio of 57 to 1. Even excluding substantial assistance departures, downward departures outnumber upward departures 26 to 1.

  There is a lesson in these numbers. More “discretion” means lower sentences. Proposals for still more discretion, although ostensibly neutral, are thus all but certain to result in across-the-board lower sentences and thus the earlier release of criminals. We know in advance that some of those criminals, on being released, are going to commit more crime. In the aggregate, a reasonable “ballpark” estimate of how much more should be possible. Accordingly, any proposed amendment to the Guidelines should be accompanied by a statement revealing (1) through case examples, its probable effect on actual sentences; and (2) its probable effect in the aggregate — i.e, how many criminals will benefit from the proposed amendment, and an estimate of how much additional crime they will commit when they are back in the community, rather than continuing to serve the prison sentence at the length it would have been absent the amendment.

  The public is owed this information. Indeed, Crime Impact Statements would be directly analogous to the cost impact estimates we see now, detailing how much additional prison funding is likely to be needed if the Commission (or, sometimes, Congress) creates longer sentences. If longer sentences will mean more costs in bedspace and security, shorter sentences will mean more costs in recidivism. The public is entitled to know both sides of the story.

• Establish a Crime Victims Advisory Group. For several years, the Commission has recognized and solicited the views of a Practitioners Advisory Group, which consists of many of the most energetic and dedicated criminal defense lawyers in the country. But it would seem self-evident that crime victims deserve at least the same independent voice at the table that criminal defendants have now through their counsel. I believe that a number of our new Commissioners stated at their confirmation hearings that they would support the formation of such a group. Now is not too soon to put that pledge into action.