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2001 Arkansas's 3rd congressional district special election

From Wikipedia, the free encyclopedia

Arkansas's 3rd congressional district election, 2001

← 2000 November 20, 2001 (2001-11-20) 2002 →
John Boozman 109th pictorial.jpg
No image.svg
Nominee John Boozman Michael Hathorn
Party Republican Democratic
Popular vote 52,894 40,137
Percentage 55.55% 42.15%

Representative before election

Asa Hutchinson

Elected Representative

John Boozman

The United States House of Representatives special election in Arkansas's 3rd congressional district was held on November 20, 2001 to select the successor to Asa Hutchinson who resigned upon appointment as director of the Drug Enforcement Administration.

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Good morning, my name is Gail Prudenti and I am the proud dean of the Maurice A. Dean School of Law at Hofstra University. On behalf of our visionary president Stuart Rabinowitz welcome to Hofstra. The president would have been with us this morning unfortunately he does have a memorial service that he has to attend. But this past week, I must tell you I have named I've given it a name because it has been such a special week here at Hofstra law, and I've named it judiciary week and it has truly been memorable. On Monday Hofstra law had the pleasure of hosting both the United States Supreme Court Justice Sonia Sotomayor as well as hosting one of the busiest appellate courts in the country the Appellate Division 2nd Judicial Department which many of you know has a very special place in my heart. It is now my honor to begin the final event of this historic week by welcoming United States Supreme Court Justice Stephen G Breyer. I would also like to say a special thanks and the warmest welcome to distinguished members of the judiciary past and present and commissioners, leading scholars, and guests of the Hofstra law symposium on the original Sentencing Guidelines. In 1988 Justice Breyer delivered our annual Howard and Iris Kaplan memorial lecture. His topic the federal sentencing guidelines and the key compromises upon which they rest. His speech was published in volume 17 of the Hofstra Law Review placing the law school at the forefront of sentencing scholarship. The important piece of sentencing history brings us back here today to commemorate the original United States Sentencing Commission and mark the 30th anniversary of the Sentencing Guidelines as Dean of the law school, and I am sure many Dean's would feel exactly the same way, these are the type of events that we truly enjoy where we can bring together thought leaders, professors, and students to create scholarship that has a lasting impact in an important area of the law. I want to commend each and every one of our students and their advisor from the Hofstra Law Review for this fabulous work in organizing this event. Hofstra law is proud to be part of the history of Sentencing Guidelines. I'm especially want to thank Brent Newton who was instrumental in making this event possible as well as his co-worker David Sidhu. Since May of 2009, Brent Newton has been the deputy staff director at the United States Sentencing Commission. After graduating from Columbia University School of Law in 1992 he clerked for Judge Carolyn King of the United States Court of Appeals for the Fifth Circuit, and thereafter worked as a public defender in the state and federal court systems in both Texas and Florida until he came to the Commission. In 2008 he argued a case before the Supreme Court of the United States. He serves as an adjunct professor of law at both American and Georgetown universities and also as an adjunct professor of political science at the University of Maryland Baltimore campus- quite a busy lawyer and gentleman. He has published three books and several journal articles and many book chapters. He was elected as a member of the American Institute in 2010. It is my pleasure to introduce to you Brent Newton. So I'm going to give an introduction to kind of lay the groundwork for the two panels and then we're gonna jump into the first panel and I'm gonna move kind of quickly because we're under time constraints. So November 1st of this year marks the 30th anniversary of the effective date of the original United States Sentencing Guidelines main. So during these past three decades a lot has happened. Over 1.7 million defendants, 1.7 million defendants have been sentenced under the guidelines. There have been at least, and this is a conservative number, a hundred thousand appeals to the circuit courts, federal circuit courts. Literally tens of thousands of people: federal judges, probation officers, prosecutors, defense lawyers have been active users of the guidelines manual during these past 30 years. I think it's safe to say the guidelines are the primary if not the defining feature of the federal criminal justice system in the last 30 years. There been about two dozen Supreme Court decisions that in some way have talked about the guidelines. There have been more than 800 amendments to the guidelines manual since 1987. So before we get into what happened with the guidelines it's critically important to understand the world before the guidelines before the sentencing Reform Act of 1984 the SRA. so before the guidelines it was indeterminate sentencing. what that meant was there were no guidelines there was no transparency in sentencing. there were broad statutory ranges a judge could sentence anywhere within a range without giving any kind of explanation and more importantly there was a crazy quilt of federal statutes, penal statutes. the original guidelines or the original Commission tried to locate them all had a hard time doing them about three to four thousand at the time, probably four to five thousand today and they were all throughout the United States code, there is no federal criminal code they were spread throughout. There was uncertainty about the sentence that was in post. parole existed at the time it typically was granted after about a third of the sentence imposed for most offenders. you also had independent of parole, goodtime credit up to about up to 50% for some offenders, and sentencing judges often had this in mind when they impose sentences so they would try to anticipate what's the Parole Commission likely going to do and they often were wrong so you would have either unduly severe or unduly lenient sentences in post in terms of the judges intent. And finally there was no meaningful appellate review. if a judge sentence within the range that was pretty much it. if a judge were to say something blatantly unconstitutional in sentencing that might get it reversed but there were only a handful of sentencing Appeals in the federal sentences in the pre-SRA era. Then comes the sentencing Reform Act of 1984, and that's senators Kennedy and Strom Thurmond the two senators who were the architects of this legislation. It abolished parole and it limited goodtime credit to 15%, it created the Sentencing Commission, had to have at least three federal judges had to be bipartisan, no more than four of the seven members voting members could be from the same party they had two main functions, creating guidelines but then doing research if you go to the Commission's website you're gonna see a lot about guidelines but a lot about research and a lot about publications, reports to Congress, and so forth it also the sentence review format created meaningful appellate review of sentences which is why we've had the hundred thousand plus appeals. What the Senate string Reform Act did not do was engage in meaningful code reform. it did not fix the problems with the haphazard criminal code. that was one of the reasons the Commission was created, it was to try to help rationalize the Penal Code through what were then mandatory guidelines. so there are a bunch of directives in the sentencing Reform Act. it told the Commission you've got to create this mandatory guideline system with limited departures, that is most sentences need to fall within the applicable range. you need to account for the purposes of punishment, retribution, deterrence, incapacitation, rehabilitation. you need to, and this was twice this was two times in the SRA and also was in a separate provision aimed at judges so really three times, avoid unwarranted sentencing disparities and create certainty in sentencing by assuring offenders who commit similar offenses and have similar criminal records receive similar punishments and the original commission took that to heart. this is the next thing this is from the Senate report but that's a piece of legislative history that was central to the original Commission. it told the Commission to create a quote "detailed set of sentencing guidelines that reflect every important factor relevant to sentencing." One of the critical parts of the original SRA was something called the 25% rule I call it the 25% six-months rule. what it says is no sentencing range can be more than 25% from top to bottom or six months whichever is greater. And finally the SRA told the Commission to limit consideration of certain offender characteristics, outright prohibited consideration of certain characteristics including race and socioeconomic status. this was the original Commission. the top judge McKennan from left, judge McKennan a DC Circuit Judge. you recognize the second person over, he looks exactly the same, then a member of the United States Court appeals for the first circuit. Justice Breyer had also been a very important person on the hill working for Senator Kennedy during the time the SRA was making its way through Congress. Professor blocked, the third person over, he was an economist from the University of Arizona an economist who I think Justice Breyer referred to him is thinking sentencing like a blunderbuss, not a rifle. in other words that the simpler the better and then the the younger gentleman who actually know everybody here was under 50 except for judge MacKinnon, everybody here was under 50 at the time. Paul Robinson a professor of law at Rutgers, he was the sole dissenter who dissented from the original guidelines manual being promulgated. he was a professor of law, a prolific writer he's written dozens of books hundreds of articles since then. sitting down, Eileen Nagel, she was a professor of law at Indiana University. she wasn't a lawyer, she was a sociologist and she brought the insights of a sociologist, of a social scientists, an empiricist to the Commission. in the middle seated judge Wilkins, at the time he was appointed he was a district judge in the district of South Carolina, he was elevated to the Fourth Circuit while he was on the Commission. and then finally Commissioner Carruthers seated to the right, she was a parole commissioner she had been a warden of a prison in Arkansas then a Parole Commission on the United States Parole Commission and she was also a member of a commission. so you had an interesting group you had practitioners or former practitioners, judges, social scientists, economists, a person with specialty in criminology, it was it was a pretty broad and deep skill set that was possessed. so what happened for those first 18 months, and I say first 18 months, the commissioners were not appointed until October of 85 and they were confirmed quickly by Congress like Senate and they had until April 13th 1987 to produce the original guidelines manual. they met for the first time October 25th 1985 and they had to get a manual to Congress by April 13 1987, its 18-month period. they had over 40 public meetings, I've been able to track down minutes from 40 but they make reference to others so there were many more I think probably 50. they had 13 public hearings with over 200 witnesses, a veritable who's who of federal sentencing. judge Newman was twice a witness. They formed advisory groups, judges, probation officers, practitioners, social scientists, law professors, they heard from all different groups of people. they did surveys of stakeholders, mr. Martin was involved in that sending out surveys to people such as editors of newspapers, people who wrote about crime, things like that. great deal of public comment and informal input from all these different stakeholders and we'll hear a little bit about this I think, they did a complex past practice data analysis, they went through 10,500 cases from fiscal year 1985 using what was then a early version of a personal computer using statistical software pretty advanced for the time and then they had three different discussion graphs of guidelines that were sent for public comment, two of them in the Federal Register. all that in 18 months plus they produced a thick manual. so what were these policy decisions? they had to decide they had obviously had to operationalized the purposes of punishment or try to, that was a tough one, they had to do everything they could to avoid unwarranted sentencing disparities, both demographic as well as just inter- judged disparity they had to decide do you have a system based on the charge or a system based on what the defendant did, real offense conduct. they had to come up with approach to that. they had to account for offender characteristics and offense characteristics in particular criminal history. they had to set penalty levels in some rational way, that's where the the data analysis came into play. they had to deal with alternatives to incarceration, Congress clearly wanted that number to go down. they had to limit departures. and then finally they had to do a sentencing table, that's where the rubber meets the road, they had to come up with a biaxial grid. so this little pyramid kind of sums up the policy decisions of the original Commission. the very bottom of it they had to decide what conduct was relevant and what fact-finding procedures mattered and that's in chapters one in Chapter six. the next thing up on the pyramid they had to come up with an offense taxonomy and set penalty levels, that's in chapter 2 and Chapter three. they had to count for chapter criminal history, that's in Chapter four. they had to do a sentencing table, that's in Chapter five. they had to deal with the number and width of ranges and come up with these zones that determine what alternatives were available or not, and then finally they had to deal with departures in which they limited offender characteristics for the reason primarily to avoid unwarranted sentencing disparities and not allow socio-economic factors to be considered. and that finally led to obviously what the sentence would be. so before we get to this first panel I want to talk about the original Commission what I say in proper context, and this is really other I think is more relevant to the second panel. 1985 and 86 when they were doing the bulk of their work, we were at the highest crime rate in American history and it was only going up it went up and peaked in 1991 as far as they knew it was only getting worse. many unforeseeable things happen thereafter. crime rate went down some but other things happened as well that affected the subsequent Commission and the subsequent manuals. many directives from Congress dozens of directives from Congress as well as many news penal statutes including a lot of mandatory minimum penalties. the Commission had to deal with these things, there was no meaningful code reform that ever happened in those 30 years, in fact it God works in terms of the number of things spread out throughout the code. there were also significant changes in the federal case load. many more immigration and Firearms cases than existed in the pre-sra era. fewer economic offences and fewer misdemeanors that were brought. i think it's a really notable statistic, it's in the article. in the year before the guidelines went into effect 12.3 percent of all federal cases were DUI or traffic offenses, these were sentences sentenced by the district judges, drops down to one percent today so we see a very different case load. bigger drug trafficking cases, bigger fraud cases, you know drug trafficking and the multiple kilos for all cases and the billions millions of dollars, and the Department of Justice is charging policies they took a very strict approach, the most serious offense must be charged ordinarily in every case that kicks in after the guidelines go into effect. and then finally one thing I want to note is when the Commission wrote those guidelines in the mid 80s the prevailing mantra among social scientists and policy makers about Corrections was nothing works. prison doesn't work, probation doesn't work, parole doesn't work, well we know in the in the ensuing 30 years that no longer is the mantra. we have evidence-based practices both in prison and outside where we are seeing things happening, recidivism rates going down when certain kinds of practices are resulting. so I say all this because when you're looking at the work of the original Commission, and this is what this symposium is about is the original Commission, none of that was known or foreseeable. We're now going to turn to our first panel. I'm going to brief you on some panelists. Judge Jon Newman, he's a judge on the Second Circuit Court of Appeals since 1979 before that he was a federal district court sentence and the US attorney who brought charges to the District of Connecticut. he was one of the most influential members of the judiciary who advised the original commission, testified before the Commission, but also providing a lot of informal input. John Steer, he was brought to the commission as a member of Senator Thurmond's staff, he was chief of staff for senator Thurmond who worked on the sentencing reform act. he came on as the deputy general counsel and then became general counsel, in serving that counsel for many years he eventually was elevated to a vice chair of the Commission. Rusty Burress was well almost supposed to be a temporary detail as a probation officer in South Carolina and that ended up blossoming into a 32 year career in that Commission as a principal training advisor. And fellow Paul Martin was brought as a 28 year old cub reporter in Greenville you see the South Carolina quotes here okay to be the communications director, and did great job not business communication director he actually helped get at the original manual and then he eventually went law school at night, became a lawyer and worked his way up to be now the Inspector General of NASA. so this is a group who knows exactly what was going on in 85 to 87 period which is why they're here. so I want to start with judge Newman, I want to ask you about this notion of experience. a lot of people say I think legislative history reveals that the notion of avoiding unwarranted disparities was the most important thing motivating the early Commission and I'd like you if you could to address what it was like in federal court in terms of experience. I'm talking about gender disparities, racial disparities, ethnic disparities, regional disparities, all that. If you could briefly address that that would be pretty helpful. Well I'm trying but I hope that's not the only thing that I'm going to be allowed and some of us are you know I didn't come here to talk about the disparities in 1972. there certainly were some, the one I was most aware of as a district judge was tax offenses. Half the judges were locking up tax evaders and half the judges were not, and it seems to me that make the decision I don't think either one of them, but it seems to me that's a policy decision in general this tax evasion generally merit incarceration or generally not instead of a 50/50 division around the country which was not reflecting anyone's policy judgement, but only the individual preferences of the then 800-1200 judges. So that was the classic one. Selective service was another one, we had selective service in those days. Those of you old enough to remember. And some judges were giving five years, some were giving two years, some were giving six months, some were giving probation. Those were the classic disparities I recall from that era. If you want me to go to what I want to talk about (inaudible) I promise we're going to go back. Good, good, okay. For Mr. Steer, you served as Strom Thurmond's chief of staff when the SRA was coming for mission. Can you talk about briefly about what that process was like on the hill? good morning. I just want to say thank you for Hofstra for bringing me out of retirement for a day. I've seen so many of my good friends and former colleagues be apart of the program. The sentencing reform act. Thoroughly bipartisan and well-considered, really remarkable piece of legislation. I mean, my former boss, Senator Strom Thurmond and Senator Kennedy did not agree about many things, but they agreed on the need for sentencing reform, and Senator Kennedy introduced the bill based on some thinking that had taken place around Yale University and took that concept and developed it into legislation, introduced it in successive congresses in and of the mid 70s. it was considered separately and as a part of the effort to reform the federal criminal code. That effort ultimately failed after he tried again and again. When senator Thurmond became chair of the Judiciary Committee in the early 1980s After one last unsuccessful attempt at criminal code reform that included the sentencing reform effort failed, he sat down with the justice department. they decided on criminal law strengthening package called the comprehensive crime control. And that passed the senate in two occasions. Chapter three including the sentencing reform, getting it through the house. Took a little maneuvering. You're familiar with the concept of adding things to continuing appropriations resolutions that happen at the fiscal year to keep the government running. There's a congressman who's a member of the House Judiciary Committee, then one day came up with a procedure and that added the text of the Senate passed comprehensive crime control bill to continue sentencing reform to a continuing resolution. That brought before the house so that the members could vote on the substance of it up and down. It passed overwhelmingly. brought it back to the Senate, there was some things that still need to be worked out. there was one senator, senator Mack Mathias of Maryland, who had mostly one who had opposed the sentencing reform efforts. And there were some accommodations made with him such as adding an additional judge member to the Sentencing Commission mandating consideration that keep an eye on prison capacity and a parsimony provision that said that sentences should not be greater than necessary to meet the purposes of sentencing. there were some things like that that were done to accommodate Senator Mathias impact all things filibuster and the legislation was sent to Ronald Reagan signing it all. thank you. Paul you were one of the original staff members and I'd like you to address briefly what it was like to start land new committee, one that didn't have any kind of institutional predecessor, it didn't even have (inaudible). Talk about that process. Sure. It was madness. Each years another mans from the get-go. The challenge of standing up a brand new agency while at the same time developing the first set of sentencing guidelines on this incredibly strict deadline was frankly akin to building an airplane while flying it with a really short runway, and homemade parts. it was madness. we first met, as Brecking points out in his law review article, in empty offices of the Department of Justice. I believe was the Deputy Attorney General that decision was making at that time, so the seven commissioners, rusty, myself, perhaps one or two others, sharing two desks, one phone. Judge Wilkins met with the gentleman from the general services administration, the federal government's landlord, and after that one conversation I think the gentleman from GSA thought he had 18 months to find an office space for us, when in fact we had 18 months to draft the guidelines and so after that one conversation with the representative from GSA, judge Baldwin literally and figuratively hit the streets, walking down the streets in Washington DC looking up the buildings for lease signs, with Paul. Give Judge Wilkins some credit. Found an office space three blocks from the White House and signed the contract under his personal name. Violated 37 federal standards. We don't have a guideline for that, thank you. Again, the man has continued attempt to hire staff members, a lot of the commissioners, people that they work with that came, if you had a sibling who needed work you brought them to DC. (inaudible) So bringing people on board, hiring researchers, but also hiring people just to function as an agency, make sure that people had furniture, make sure that the commissioners travel was done, that he got from point A to point B. Again all against the backdrop of this incredibly short deadline that the commission had. and did I mentioned that nobody liked us. None of the district judges, thank you judge, not the appellate judges, not the federal defenders for sure, not most defense attorneys, frankly not the department of justice most of time, they didn't like us either. our brethren within the judicial branch, supposed brethren, the Judicial Conference United States, they were not excited, and administrative office of the US courts and the Federal Judicial Center were not extending the helping hand of friendship to help us out. so it was madness. Rusty, you were brought as a probation officer along detail and probation officers played a huge role in the beginning of the guidelines. Can you talk a little bit about that and in particular if you could talk about the past practice. Yeah, I'd be happy to. And I'm happy to be here, thank you folks for including me here, it feels like Old Home Week so I do appreciate that as well. yeah I was a US probation officer then South Caroline, Judge Wilkins call me to his chambers and said Rusty I've been appointed chairman for the Sentencing Commission, he said we have no staff he said I'm paired with Paul Martin, excellent, and I said thats good. He said would you like to come on detail to the Commission because he and all of the commission early on realized US probation officers were going to be very critical in making this work. US probation officers, long before sentencing guidelines, were always in courts sentencing experts, the district and judicial act of US probation officers, right in the pre-sentence investigation report, telling the judges what was available statutorily in terms of giving a sentence. when the Parole Commission guidelines came along, the Parole Commission guidelines, how to calculate those and tell them to judge you know what the parole guidelines would call for for an individual who went to prison, and then also just what was available in terms of justice of the sentence for this person, what resources matter, do you want the person in a halfway house, will they live in a place it doesn't have halfway house, that type of thing. so of course we rely heavily on probation officers to include in most instances in most districts with most judges, giving a recommendation as to what the sentence should be. and the probation officer would actually respond, actually graph out that language so the judge would correctly say that, so there would be no issue about the judge having given an appropriate legal sentence. so the Commission realized the probation officers now would be involved in the guideline sentencing guidelines as well. so that critical thing was going to require buy-in by US probation officers plus the ability for probation officers to do it. And so the Commission and working groups early on bringing in US probation officers, based drafts of the guidelines and even the ones publicly released and then the ones that were more internal having the probation officers work through that. and so US probation officers were actually very happy to be engaged in that process because they knew they were going to be having to do these things. and so if they worked out the things about application one, is the commission looking at say some factor for the guidelines that probation officers can't obtain that information because there's no need to have like how much time is still in serving a jail sentence if you can't get that information. so that was critical, but then just the mechanics of the application as well. and in terms of having district judges buy into it, the commission knew that if probation officers couldn't do it, the district judges were not going to be happy with the system US probation officers couldn't do. So probation officers throughout have been involved. and in terms of this data research the Commission by statute, the first step they were supposed to take in writing guidelines was to make a determination as to what that existing sentencing system that clearly. It did in terms of average sentences for different types of offenses and for those that went to prison, the statute required that the Commission make the determination as to what was the average length of sentence, which wasn't as easy and simple, this person got a 10-year sentence and this person had a 5-year sentence, this is the average, because you had parole guidelines, you had early, good time releases, that type of thing. All that had been factored in to make those determinations. well the Commission had a database from the administrative office of the US courts from 1982 to 85, a hundred thousand cases that they have lot of information on. The commission went into that database, looked at it, and determined that 11 thousand cases would be a good sample from 19 fiscal year 85 to make a determination as to what was going on in federal sentencing both geographically and in a vintage time, so the Commission needed more robust information other than mayos data which was not sufficient to make these determinations. so the Commission needed to code 11,000 cases, we had almost no staff. how do you that? So the commission went to the probation division at the administrative office and said we have a coding instrument. we would like these eleven thousand pre-sentence reports, judgments, and other documents, other court documents gone through to code these cases. The US probation officers around the country who had written those 11,000 pre-sentence reports did that. and sent that information to the Commission and not only that information but also sent the pre-sentence reports themselves, so the Commission had a more robust database and was able at that point to determine you know what were the average sentences for those who went to prison using that data along with Bureau of Prison's data and parole provision's data, of what was the average they were in prison. Commission also had the benefit of them going in, I think we rested an analysis, decided what factors seem to be important to judges in terms of what sentence was given and the length of that sentence, so the commissions that would go in and then figure out when a robbery it seems like the robbery with the gun seemed to have gotten a little sentence by this amount more on an average than one without it, those types of considerations. so the Commission did that and that allows the Commission to read that initial step and then ultimately in terms of experience characteristics allowed the Commission to say well what characteristics of that offenses do we think would be important when the judges have deemed that these are important factors and the Commission provided that. and then ultimately when the Commission made the decision to use this what's referred to as the modified real fit sentencing system where you apply the guidelines based on the offense of conviction, within the guidelines for the offense of conviction, there are number of real considerations, those really formed the basis for the rule offense consideration guidelines. Great. Judge Newman, here's your chance. You're back. All the judges were critical of the guidelines and all the different variations of the drafts, including you, you wrote your story in the article. Can you talk a little bit about why the judges (interrupted) let me go back earlier though, 'cause I'm really here to atone for my sins. before the guidelines there was the statute and as was mentioned the statute was first developed at a seminar in a law school, built working from the premises of Marvin Frankel's pioneering book. Marvin was part of that seminar, I was a part of it. we drafted a statute. The Sentencing Reform Act, there's a considerable resemblance to that original work. I can tell you that neither Marvin and I in urging that act called for guidelines, never in our wildest imagination imagined what would emerge from Sentencing Commission. we thought guidelines meant a small set of guidelines. we have in front of us the parole guidelines, you may recall them. Those were guidelines used by responsible people to decide how long a person should be in prison before he's released. and they covered the full range of federal prisoners and they were three pages in length. now we didn't expect three pages but we didn't expect the original one which was 267 pages and since then it is now fully, holding it up, it is now 572 pages without counting the appendices. So my first problem with it is that the Commission made a terrible mistake back then in opting for something so complicated. I don't think it had to be so complicated. I know they're people who disagree with me about that but I think it could be done simpler and I point to the states that also have to have guideline systems and they figured out how to do it simpler. Pennsylvania, Minnesota, Washington and several others. When I go around the world and I have many of these Western countries talking about sentencing and they say well we surely don't want your federal guidelines, they're terrible, and I say guidelines don't have to be the federal system, look at our states, they have done it better. my problem is if federal guidelines have given the principle of guidelines a bad name throughout the world. now I'm not interested particularly in worrying so much about what the foreigners think of us, I'm worried about what happens with district judges. the first problem is it's way too detailed. the number of pages shows that. you have all these fine gradations, look at the law stable, and before I even get to the specifics I want to make one point acknowledgement. I know I'm going to be told, I have been told, but I'm going to tell it again, Congress has hemmed us in, Congress has hemmed us in and then there's the twenty five percent rule which hems you in, although it only hems you in if you interpret it the way your staff interprets it and not the way Cathy Goodwin interprets it. And as the twenty five percent rule, I urge you to bite the bullet, do it the right way, let a Court decide. If a court rules against you, that's fine. I don't think the federal judiciary is going to rule against the sentence recommendation in the guidelines. But in any of them I understand Congress has hemmed you in. you say the premise in the early part of it, this is an evolutionary process you say it twice and its used in courts using that word evolutionary. these guidelines have never evolved. there have simply been hundreds of amendments, the most detailed imaginable, some you had to do, there were new statutes, I understand that, many were just refinements. there has never been an evolution, if we look at it to see if you could evolve go back and test your first premise ,what were your first premises? One was that every increment of wrongdoing had to have an increment of punishment. I think that was of advise, the law stable shows that. If you steal $6,500 you get punished more than if you steal $4,500. no penology system in the world makes those distinctions. how does it work in practice? if you go to your law stable and the fellow steals $30,000 you have four levels. he steals $50,000 you add six levels. Is he more of a villain because he went and stole 30 more than 50 and what happens to him. at the high levels that means four more years of imprisonment, four years the fella who stole 50 than the fellow who stole 30. what's the real difference between the fellow who stole 30 than stole 50? it's usually how long the agent decided to investigate the case. Because postal inspector was busy, he stopped counting those letters and he brought it to the assistant US attorney and with her authorization. if he had a low case load in South Dakota he said I'll let this run a few more months and the loss went up to 15,000. same with tax, the IRS agent says well I've got him on two years so I'll bring the case in, another agent in South Dakota says I'm not too busy, I'll go three years and then it's a higher tax lawsuit. there is no difference in finality or criminality between those criminals but they get sentenced differently by a commission chartered de niro disparity. so I think that's a mistake. I think another key mistake was saying that role of the offense is an adjustment and amount of dollar loss and amount of drugs is the major determinant of an offense. that has the tail wagging the dog. if I think, when I was a district judge, if I saw a criminal who was the head of an organization he should get a big sentence and if he or she was a mule, the sentence should be low. the big determinant of money and drug message should be role in the offense, money or drugs should be a slight adjustment. you have it exactly the other way around. You have big adjustment for money, big adjustment for quantity, why? because those are countable, it's easier to count those than it is to count role in the offense. but you could trust district judges to understand that kingpins deserve a lot more than mules. so that part is a mistake. the fine distinctions, well I'll wrap this up in a minute, define distinctions. a judge today has to make a distinction between whether a person's role was minimal or minor. Is that why we went to law school? to decide the difference between a minimal and minor? can't you trust 1500 district judges to look at him and say he didn't have that much of a role in this offense, I think I'll give him a lower sentence. or the height at the aggravating one, is he a leader or supervisor? (inaudible) Is he just a leader or a supervisor? You don't think district judges know enough to know this fellows a kingpin and he gets a big sentence without having to make a discreet finding is he a leader or supervisor and then incidentally on some of the injury claims you have a two level and a four level and you say, and of course if it's not one you can go in between and do three, so now he's got to decide is it 2 or 4 or 3? I mean it's odd. in any of that there are many more examples I could give you but I emphasize you said it wasn't an evolutionary approach, I think that means going back to your first premises and seeing if you could do better. now it's difficult, Congress has hemmed you in, but you're the expert Commission. draft a simplified system, put it out there, let us see it. if someone wants to say commission we can't do all that. okay, at least we'll know what you think is the right thing to do. convene a group of experts, let them draft it. let the evolution begin and if you want to get it done there were key people, some right in this room, who could pay a courtesy call to the key senators on the Judiciary Committee and seriously talk about the idea of making this workable and less complex. I'm not talking about leniency. with tax we talk about revenue neutral. I think you can do sentencing reform and have the punishment neutral. I'm not urging severity, that's for another day I'm just urging simplification to make this thing work. one last thing, one of the things that was done, and I plead guilty of thinking this was a good idea, you eliminate parole for truth in sentencing, that was the phrase. truth in sentencing never happened. why? you did abolish parole, I get that, but every day the New York papers which I look at they talk about a fella who was released from state prison after seven years and just held up a person remaining committed a murder. 98% of sentencing is done by the state courts, all of America thinks there's parole why? because there is. all over America. so what you have done is taken away the opportunity to get, yeah it's not your fault this is the statute, can be released at the one-third point so judges are now giving 10, 15, 20 year sentences and the public thinks they're getting out at the third, and they think that because they read that every day when they read about what happened in the state systems. so that is one thing that just didn't work. that's not your fault Congress, I was part of that. I plead guilty. Gentleman, would you like to respond to some of the things he said? If you were on the general counsel at the time. I think all of those who were on the hot seat, were very attentive to the statute that came before them, and the well-written Senate Judiciary committee before and they tried to be as faithful to those documents. they put up the synopsis of history they heard from a lot of people, they heard from judge Newman, they considered all these views, they had some opposing views from the Department of Justice for example with respect to 25% rule. it wasn't just an opinion that I wrote, it was a it was an opinion letter that came over from the Department of Justice over signature of now judge Stephens Wright, and you know they put their strong view that the 25% rule meant something different than what Judge Newman urged. My good friend Jackie Goodwin labored growth for the opposite view was reconsidered under Attorney General Janet Reno and the view came out the same from the Department of Justice. That all originated with a specific amendment offered by Senator Abourezk of south dakota and when the Senate was writing this legislation they didn't specify the terminology, they didn't say that there would be specific offense characteristics and that's one thing the Commission did those things. The legislation did not even say that there had to be a sentencing table as such. they simply say I think you have a risk amendment, nailed it down that said Commission, however you define an offender with characteristics, that same offender or another offender with those same characteristics appearing with the same or different judge, this sentence should not bury 45% or six-months. And that's what they were focused on.The commission has I think the relaxed its interpretation of that rule with respect to the consideration of sentencing alternatives. I have been involved in much of the recent consideration of sentencing alternatives, but I do read the blogs and I try to keep up and I know the Commission has done quite a lot to evolve in recent years and to allow ready for simulation and sentencing alternatives and they're still pushing it more in that direction. so there has been a lot of evolution but there's also, I think they'll always have that feeling that they had to be faithful to the statue. anybody that's been on the hot seat as I have, and the original commissioners were really on the hot seat, is always mindful of what Congress made. The liaison with the Congress has been good, I think that has been true from the outset. they have stayed in close touch. I was involved as general counsel in pushing the Commission to make some decisions that later got overturned by Congress. A couple that did get overturned. so I learned the lesson the hard way, congress is aware of sentencing. they are aware of what this Sentencing Commission is doing and then they do care, so statute and the legislative history provide a very good roadmap that the commissions continue to drive. I want to say one word on the 25% sentencing. sure there's a dispute, somebody within the department said one thing and somebody in administrative law office wrote an equally persuasive about the other way. As Justice Breyer knows, I always read statutes literally, right? The statute says the top of the range must be no more than 25% of the bottom of the range. Every simplified table I sent to the commission has the top of the range no more than 25% of the bottom of the range. I follow the statute explicitly. The argument against simplification is that well if you give them a little more flexibility with the adjustments they can outmaneuver the sentencing table. the statute doesn't say anything about outmaneuvering the sentencing table. It says the top has to be no more than 25% of the bottom. All of my simplification proposals complies scrupulously with the statute. So Rusty and Paul, your other leading staff members who are not here that I'd like you all to talk about, Peter Hoffman, David Lamadero, Bill Roads, could you briefly talk about their contributions? Actually, I was going to talk about a couple of them. They were some brilliant people. I know Peter Hoffman who was really the architect of the parole guidelines from which several key concepts were brought over to the federal sentencing guidelines. the debate that we're having, the conversation we're having now just resonates thirty years later, it's the same conversation same arguments, goodwill, folks coming to incredibly difficult issue from different perspectives. I think what's incredibly important to keep in mind is the dynamic that the Commission was under. Both political dynamic, that's capital P or small p however you want it, both positive and negative, and the intense time crunch, and it's incredibly detailed statute that the Commission was doggedly trying to be true to. So those were incredible pressures. Along the way we had some excitement because it was Washington. we had a an ex-officio member representing, sitting-in for the Attorney General , will pose the guidelines that the Commission developed which was a rather unfortunate outcome for the Commission. Thankfully the Attorney General Meece that did not actively pursue up on the hill, Congress stopping the guidelines from going into effect. but that was one of many monkey wrenches that were thrown in. Halfway through the guideline development process, someone came up with a great idea, hey we can use the Sentencing Commission as a vehicle to re-implement federal death penalty. after Furman V Georgia had nullified the sentencing death penalty statutes across the country, someone I believe of the department justice had the wonderful idea, the Sentencing Commission can write the guidelines that will provide proper constitutional protection for capital punishment. and so much ink was spilled and emotionally shed over the discussion and that was finally put to rest on a four to three vote. Three federal judges and Commissioner Carruthers voting against the probability death penalty guidelines because as much wiser and more veteran folks than I at the time from Washington, if our guidelines contain any death penalty language in them, they would have been dead otherwise. Rusty, would you like to talk about some of the other staff members? Well you have Peter Hoffman who was a long time drafter for the commission after joining the Commission staff but David Lamadero was involved early on. David was a mathematician, was a mathematician attorney but they had a mathematical flair and when you start talking about these ranges and the 25% rule, that type of thing and I think I'm correct, you know from research, that he's the one that is sort of credited with the structure of the current citizen table but the overlapping range is now 25% requirement but having overlapping ranges in that development. Bill Roads who was our research director and of course we had a lot of research early on, is more to mention in terms of what had been had been happening in citizen previously and continued through what was happening that I think, correct me if I'm wrong, the Commission was the first study, our research department, About the disparity, about the demographic disparity, I think we did the first demographic disparity. Regression analysis. So those were some of the key players. Of course I'm sitting left and right in a room of people involved. Well we've got about five minutes left, and I thought I'd give each of you a chance to have a closing argument if you want to, if you want to call it that. In that, I mean obviously there are positives and there are negatives. 20/20 hindsights a great thing but as I tried to point out in this slide that's a hard thing to do here so if you want to make a few closing remarks? John. Well I've been on the outside looking in for a while and I actually you know share some of the concerns that Judge Newman articulated about the need for simplification. I guess I would go at it a little bit differently. the Sentencing Commission has produced some wonderful and I think they're convincing reports and documents in recent years and I think they need to produce Congress a special report that outlines the complications many of which have resulted from the actions of Congress directing the Commission, and sometimes those directives result in the Commission doing a lot of work but they end up affecting very few offenders and probably the original Commission definitely would have said handle those things through department language. note that this is a concern and it it occurs the judge can consider it by going higher than the range or lower than the range is. Anyway I would urge the consideration of a special comprehensive report on the complications of the guidelines and the need for simplification. I don't think just putting it out there and expecting it to rise or fall and let the courts deal with it as a statutory and constitutional matter is necessarily the right approach. the other thing that I think the Commission needs to look at is the mathematical foundation. rusty mentioned that we had a mathematician, or a person with a mathematical background on the the staff David Lamagaro, but if you look at the guidelines beyond the foundation for the aggravating factors there are several different mathematical slopes if you will, there is the multiple count group which increases sentences if you have multiple counts of aggravated conviction, but it does so at a decreasing rate in and eventually trails off. contrast that with multiple, they are called specific offense characteristics, and a given guideline which would increase this sentence. At increasing rate and if they are too numerous can actually drive the sentence through the roof if you will. and then somewhere in the middle there are the quantity tables which tend to increase the sentence also but also have an inch of a downward slope. I don't know which of these is from a criminological standpoint is the right approach. the Commission needs to think, to really think and then you got the criminal history points and categories that have their own separate slope. so I think I would urge the Commission to give some serious consideration to the mathematical foundations and rethink that as they're going about some simplification. Judge Newman. I agree a report such has been suggested would be very useful thing to do but I don't think you should shy away from having your staff or asking others pen in hand and see what simplification would look like. Your Chairman made a speech at the ALI urging simplification, but to the lay audience, to the informed audience, even to the congressional audience, the word simplification doesn't do it and it's going to be misinterpreted as leniency. So if you put out one, two or three possible variations of a simplified system so people know what you're talking about. the public doesn't understand this, even the investigative editorial writers don't understand this, and the Congressional people don't understand this. so try it, or if you haven't got the time to do it, if your staff is busy drafting next year's amendments, convene an advisory group and charge them with the task of considering different proposals, you can invite them, I'll spend mine again I'll be glad to, put out two or three as possibilities so people know what it would look like. If it runs up against the 25% thing then air that dispute, that's not written in stone, it's in the statute but the statute, as I pointed out, I comply with it literally, and I think that's enough. others might disagree. but try it out. As you say you're beginning you have an evolutionary process, let the evolution meet you. Rusty what's your big take away form the 85 to 87 period? Well my big takeaway is that the Commission first of all remarkably got the product out, and it's a product I think that was actually pretty well received. information officers were able to do it which was critical, and in fact in doing it I think it felt pretty comfortable because the characteristics we were looking at were the things that they'd probably be considered before the approach the Commission took, so they were doing things that that they were accustomed to, looking at robbery, was there a gun involved? how much money was taken? what was the injury? that type of thing. and the judges were pretty comfortable with that. I think the main complaint I heard early on was just the severity of the sentences and I think coworkers over here say, if we went and said cut the drug guideline in half, cut the sentence in half, that probably would lose most of the criticism that we're hearing. Now is there an additional amendment to the Commission of guidelines over the years by the commission and sometimes by Congress, sometimes the guidelines there is complexity now, and I really don't think it existed actually in that first round of guidelines, cross-references, sentences, that type of thing, I think the good news is that the system has been working on the same foundation for all this length of time, we have a lot of people that are accustomed to sentencing in the federal system, so even if you start looking at simplification there's sort of a base to work from now that really hadn't existed probably when we wrote the original guidelines. Paul, same question. Just that 30 years later I come to realize that all my life is a circle. I will not sing the entire song for you, unless asked. Right now if you read any newspaper there's criminal justice reform up on the hill at Washington, by partisan criminal justice reform. Now whether it will ever escape the Senate and whether or not it will ever be enacted, but this is an ongoing conversation, if we need to complete that and it's an important conversation. my wish list that going back 30 years ago, its politically unrealistic at the time, but my wish would have been that the Commission was able to disentangle this drug quantity guideline from the mandatory minimum. mandatory minimums came after passage of the SRA, and I think that the Commission frankly made the only decision it could have by anchoring the drug table based on those mandatory minimums, which I think most, 30 years later, most folks have come to realize are enormously high, but you know, in my perfect fantasy world the commission would have made its own decisions about where to place those and then when there was a conflict with the statute, the statute would have prevailed. But that's not the world we lived in then, perhaps thats the world we could live in now. If you could join me in thanking the panel (applause) My name is Jonathan DeMars, I'm the editor in chief of volume 46 of the Hofstra Law Review. today I'm undoubtedly one of the most fortunate law students in the nation. aside from the great honor of being chosen to introduce this afternoon's keynote speaker I've had the pleasure of working with a number of people without whom this event could not be possible. I've received the unwavering support of mr. Brent Newton, our author whose dream it was to hold an event just like this, our administration judge Gail prudenti, and Lisa Monticello our dean of students, all of my outstanding colleagues at the law school. thank you all very very much. I would also like to thank each of our esteemed panelists for being here and for offering their perspectives in moving this important area of law forward and additionally to all the members of the judiciary that are here, thank you very much from all of us in the Hofstra community for being here this afternoon. 30 years ago Justice Breyer delivered the Kaplan memorial lecture here at Hofstra as Judge Prudenti told you earlier, a speech which was published in the Hofstra Law Review. it was a key to our prominence as an emerging law journal. it provided a foundation for understanding how the original sentencing guidelines came to be. in those remarks, then judge Breyer emphasized compromise between the original commissioners and that only after reflection could meaningful academic discussion, criticism, and eventual improvement take place. both with sentencing policy and our discourse more broadly I think that still rings true today. the Honorable Steven G Breyer is a graduate of Stanford Oxford and Harvard Law School he taught law for many years as a professor at Harvard and the Kennedy School of Government. he's worked as a Supreme Court law clerk for justice Arthur Goldberg, a Justice Department lawyer in the Antitrust Division, an assistant Watergate special prosecutor, and chief counsel of the Senate Judiciary Committee. in 1980 he was appointed to the US Court of Appeals for the First Circuit by President Jimmy Carter, becoming Chief Judge in 1990. and in 1994 he was appointed Supreme Court justice by President Bill Clinton. I'm extremely humbled and honored to introduce Justice Stephen G Breyer, Associate Justice of the United States Supreme Court. Thank you very much. It's terribly nice for me to be here. I mean one of the lines in Shakespeare that I like the best is that we saw the other not too long ago Henry four, part two. okay now in this there's a scene where Falstaff comes up to the old judge and the old judge is sitting there with his great friend from law school and the judge looks backs at him and he says "you know" he says "those were the days." I see you my so many friends from that period, it was a little rough that period but, my goodness, it's nice to see them- rusty and Paul and John Newman, everybody it's really great. and I dug out a speech I gave ten years after I talked here and I thought maybe I can find some things that'll be relevant. I gave a talk about the guidelines that I think was at, no it was in Nebraska at the Hruska Institute it's a pretty good Institute named after Roman Hruska and he was there and I talked about the guidelines and and I looked through that, I got everything I said then was relevant and I think nobody will pay more attention to what I say now than they did then, there it is. But I remind John that Ken Berger was really working on this non-stop for Kennedy, I mean we were trying to find things that I'm really honest about it, we wanted to find criminal justice reform or justice reform things that were totally unopposed, you know. so then we could say see our committees doing its job, and we found a few and by the way they've turned out some of them pretty badly but none the less, no hardly anybody opposed it. it was Frankel and Newman and and various others, it was a great idea, okay! so we went through and got this thing written up and it may not have been written up perfectly but nothing is and even then there wasn't much opposition until the guidelines came out, then I went I remember one talk I gave in the 11th circuit I had to explain them and judge Hill, who was a wonderful judge, I'm sitting next to him at dinner and he was making conversation and he said well what did you do before, oh I remember when it was by the way, it was October or maybe was November 1988, was that when the stock market took a? yeah okay it's a month or so after. I think that was the end of the dot-com boom or something or it wasn't great.well anyway I was sitting next to him and he said "well what did you work on what did you do before?" and I said well I work for Senator Kennedy and I spoke for him twice. he said "well what did you work on when you were first there?" he said. I said I worked on airline deregulation. "oh" he said "you worked on airline deregulation did you?" I said yeah and he says "and now you've been writing these sentencing guidelines have you?" I said yeah. he says "they didn't just put you in charge of the stock market?" so there we are. I'll simply remind you of a few things that going back to that period I mean and when I spoke in Nebraska I made two or three suggestions which are probably the same suggestions I would make right now and they're pretty hard to carry out. and it wasn't just that John that there were a few tax discrepancies. I mean we had a lot of facts and figures that show that the discrepancies in sentencing by federal judges was pretty bad, I mean they showed for example if you were black and in the south and you did exactly the same thing in robbing a bank, your sentence on average was 13 months more than if you were white or not in the south. and they'd showed that they did a test in your circuit, in the second circuit they, I don't know we did this test, I think it was the FJC or something like that. and they had all of these fake cases you know and they give them to the different judges to sentence and they got wild discrepancies, I mean really wild. and that was what Marvin Frankel and others used to say "look if it doesn't depend on the judge, if it just depends on the crime and the person, why are you assigning judges by a lottery wheel hmm?" ah that's a point. so we did go into this because we wanted two things; one was greatER. I put ER not EST. not perfect, fairness, but increased fairness where people were treated more alike, not perfectly alike, more alike. a little bit eliminating the discrepancy, that's the object. and the other was honesty in sentencing. i don't know what people think but it is true that there used to be things or the federal judge would appoint you know it sentence for 20 years and then the parole commission would cut it to seven, and then the judge who was annoyed at that, next time would sentence to 60 so don't he be cut to 20 in that time the parole commission fooled him and only cut it to 30. all right so for whatever it was, it was not straightforward in the federal system. so more fairness and more honesty but the perfect is the enemy of the best, nobody expected the best. okay so now what do we end up? well we have it's a much harder job writing federal guidelines than you might think. the states, we discovered that the state of Seattle, or that's not a state, the state of Washington I have it here, yeah Washington State has about a hundred separate criminal statutes. the states don't have that many criminal statutes. the feds have seven hundred at least and growing and more. why? because the state's tended to follow the model Penal Code suggestions which are you have a behavior? it's a crime. the behavior is this crime. the feds have not because a lot of what they do is jurisdictional. so try the Travel Act. say what's the behavior that violates the Travel Act? all kinds of behaviors! but there's a federal hook for jurisdiction. try the Hobbs Act. try a lot of them and you will discover there are many more sentences and there many more statutes and in addition there are many statutes that cover wide ranges of behaviors. well we're trying to write for behaviors, not statutes. do we try to write this for statutes? you know that's easy to do, this statute does this sentences. fine. you turn all the power over the prosecutor. I mean that is a problem. have you turned a lot of power over the prosecutor. and we didn't want to turn power over to the prosecutor. what we wanted to do is to take power from the prosecutor and to have the sentence roughly, very roughly, reflect what was, in fact, the behavior that underlay the crime. and the offender. but we didn't do too much with the offender, why not? well we didn't do too much for the offender because we got into a lot of arguments. why did we get into a lot of arguments? because we know one thing, no you knew nothing for certain, but you know one thing fairly certain- what the past record is. and that did correlate with an increased tendency to commit crime. but what is the next thing that correlates most closely with committing crime? arrest record. hmm you want to write these guidelines to make the sentence go up with arrest result in a conviction? hmm. oh at that point! okay and then we tried to look for a few others. we couldn't, had a hard time finding them. if there are some now, I mean they're all over the lot or they're not. and and so we thought we'd stop pretty much. now that is what happened, whether it's the perfect thing to have happened or not to have happened I don't know, but that really is roughly what happened. and then when we went to figuring out what's the length of the sentence, oh should it be charged offense? No. well what about real offense? we did have one Commissioner, Robinson as you recall, who obsessed, I tell the truth about this, well he was determined he was going to make every sentence turn on what the real behavior was to the nth degree. and he came up with something. he really did. but it was you know by using calculus and mixed with trigonometry and I don't know. So Feinberg, Feinberg, I showed it to him, he and I looked over this, and MacKinnon we said no no no we can't do this we can't no no no. Arthur Garrety said oh please stay away from this. the judges we tried it out on say don't go anywhere near this, it's an impossibility. so what we did was we convened for Billy Wilkins who was, you know, wanted to get something out. we had Billy Wilkins, Cam, me, and we set up a panel- Newman, Ace Tyler and Frankel, wasn't Frankel there? yeah. then the three of them. so we said "well what do you think of this?" saying this in a rather naive way. they said "what!" that was basically enough that we ought to try a different approach, and so we did try a different approach. and the different approach was gradually worked out where we called it the X version and Lombadero had a lot to do with it, and Hoffman had a lot to do with it, and you all did, and Michael Bloch and I sat down, and I thought the key moment from my own psychology was when Michael Bloch pointed out quite clearly to me, I took it in, that God doesn't tell us what the right sentence is, you know? there is nothing that is going to tell us exactly how a person who has done a wrong thing should be punished and therefore don't worry too much about being crude, don't worry too much about using the blunderbuss, don't worry too much about trying not to get it exactly right, you will not get it exactly right. but just try to reduce the unfairness a little, some, a bit. and once we begin to take that approach, well what do we start with? we have Bill Rodes, I forgot Bill Bill Rodes. Bill Rodes of course had the ten thousand, ten thousand real cases you know what their crime was, you know what they were convicted of, you know what their past behavior was because it's in the pre-sentence report, and you know what happened to them. you know how long they stayed in that Jail. so we had 10,000 of them in the computer and we could work with the 90,000 others that made a hundred thousand or so, and therefore we had pretty good data on, one, what really happened to people over the preceding few years, and moreover, what were the factors that the judges really use. so that was in a big computer printout and that was over in the corner. And so we had a lot of late night meetings and they go on and on and on because the deal was start with draft X saying what really happened. now, we can modify that because there will be irrationalities, but let's discuss each as a modification. and so when I didn't like the modification perhaps or somebody else didn't, they'd say well go, let's look at what Rodes says. and then people began to say okay okay, the answers in the corner. we know it's all these crumbled up papers in the corner. and that was slightly comical and or tried to be humorous but it wasn't humorous. I mean it was a serious matter and we would go look at what they were and then we'd have to try to debate should we or should we depart from what the history tells us federal judges have by and large actually been doing? and the main thing on drugs, the thing that accounted to the most, the thing that was absolutely high correlation with sentencing, was amount. I'm not saying all the amounts we have but that was there and that's what judges had been doing. now okay then we come along with the with the later things, but it was true, that's what was there. And so we did finally go around the country, but we had gone around the country with some earlier versions and so my personal belief is that the total negative or a negative reaction was a little bit to those earlier versions which, and the later version had taken the comments, which were which were serious comments, into account. not perfectly not perfectly but you see we had to have started roughly with what judges have been doing, start roughly well we couldn't use charge offenses, we couldn't use real offenses, so we have this concept called real irrelevant offense concept and that had to work crime by crime. so you had to say things like when a person, for example, commits a drug crime, don't count the money that he stole, or something like that because that's really too far distant from what he's being accused of, that's fairly subjective. but the relevant conduct bit by bit was one of the harder things to work out, and we did work it out eventually. I'm not saying again that it was perfect by any means, it was a set of human beings trying to make a rough approximation of what kinds of things you should or should not take into account in sentencing for this kind of a crime, and that can be very distant. and we also had to remember at that time that the person who is going to be finding the facts was the judge, not the jury. and when the judge finds the facts, of course, if you don't like something and you are a defendant and you think the pre-sentence report is wrong, you have a chance to contest it, you did at that time before the judge. yeah all right that's something, but it wasn't the jury. if you're gonna go to the jury, I've said this in opinions, if you're gonna require the jury to do all that i.e. they have to find out in the first reaction of the defense bar is, the jury should decide what the facts are. and great, so I say well that's interesting that you think that because now suppose what your client says "I was in Chicago and the drug transaction took place in New York. but by the way it wasn't a kilo, it was only half a kilo" that's what you're gonna tell the jury? oh now they're not being stupid because their job today is very very much more not in the court. they're before a prosecutor, and since they're before the prosecutor, they want to use it as a bargaining tool and they want to say "you don't like my view of this? okay let's go to court" and so they're not so upset about the thing that I was upset about. but all that is an interplay and there were reasons for doing what we did and some of them hold up fairly well and probably some of them don't hold up as well as we thought that they would. Right. so what were my suggestions at that time? and they still that would remain suggestions. I said I have some suggestions, suggestions. one for the Congress, one for the Justice Department, and one for the Commission. and my suggestions, which are imperfect, for the Congress was I cannot believe this we never thought, can't you stay out of it? I mean it's like the man you put in the Sentencing Commission as a sort of preferable version to the to the Parole Commission, you put it in, in a way, trying to copy what they had in England, which was they had what's called the tariff. and the tariff was sort of a rough idea of the kinds of sentence you give for this kind of behavior. but it wasn't written in stone and it wasn't. that's what we thought it would be. Judge, you have a typical case? apply the guideline. Judge, you have an atypical case? Depart. give your reason, the Court of Appeals will review it, and the Commission will collect what the courts of appeals say and what you say, and therefore there will be an iterate process where these guidelines improve over time. and I don't think it's true that they happened at all I think that's overstated. I think they do. I mean they do studies, they do read them, and you do see changes, and I think some of those changes have certainly, I mean I'm not positive I'm not an expert on this anymore, you know I think some of the changes reflect what judges have been telling them and that's what they're supposed to do. not all, and I don't know how many. but that iterated process was what was supposed to happen. and then it didn't happen very much and now it's happening again because of Apprendi and Booker and the cases that said oh well... Apprendi was not my favorite but nonetheless, Booker said the guidelines are really voluntary, use them as advisory, and then they have some jargon, I can't tell you it was, whether its a departure within the guideline or, what was it? A buriance. whoever made that up was an expert in confusion. it seemed to me that said that it's the same thing or it should be about the same thing really, but there we have two words roughly the same thing, and as I think "I'm going to bury it from the guidelines, I'm not going to apply them" I think to myself when I see that sometimes, "hey why didn't you just depart?" I mean if you read the beginning now, the introduction is the same as it was when we wrote this 1988, and it says, and this may leech onto that conclusion, it says "we really haven't considered anything with care", we mean with the care it deserves, and therefore judge, you have an unusual case, depart. and the Court of Appeals will look at it. the Court of Appeals should defer a little bit to you insofar as you're talking about the individual. but if you're talking about "I have written/ can write a better guideline from my bench, without any information, than the Commission can from its offices with the staff and with more information," if that's your point judge, maybe they should defer a little bit less but that's another kind of assigned issue. all right, so what was my point? stay out of it Congress. okay they're not gonna listen to me. why? well I think when they start passing mandatory minimums, unbelievable. I mean at one, at first thing, it is like a person who's, you know, who's too cold so he comes into the house, and so he turns up the heat to 78, and then having done that, he sits down and puts on his overcoat, and then he puts on another overcoat and his sweater- please you're overdoing this. don't do both at the same time. and aside from the many other problems with mandatory minimums that they've drove the drug guidelines and I can sympathize with the the Commission's awkward situation that's that circumstance. and moreover they don't give the judge the opportunity to say "look this guy did transport 40 tons of cocaine across the international border, but it was somebody who was lying on the dock somewhere and they just dragged him to the cab and says here's 40 bucks, take it across the line. You know please, mandatory minimum 25 years?" or did you see a mandatory minimum takes away flexibility, it's not the guidelines. but the judges didn't know that, maybe they still don't. and so they blame the guidelines for everything. but I'd love to get rid of these mandatory minimums. they've weakened them in certain parts and they've monkeyed with them and so forth. now, how can we get rid of them? oh and by the way, Congress also thinks it's a fine idea to go and interfere by saying "and put an add-on here, put an add-on there. I have a constituent who really hates fake diet foods, you know, and doesn't think they work so anybody who is fraud in the diet food business- life ." you know? I mean all right, now you get the point, they don't really do that, but they sometimes come close. Okay, so stay out of that, stay out of it, don't do it. probably your staff person may or may not understand what was just said which is these guidelines are logarithmic, and that means, I don't know the logarithmic worked pretty well at the beginning, that means like a log ten percent of a thousand, what is it, 100. ten percent of ten is one. they go up by percentages. so you add ten percent where you're already at one, you're gonna get two. if you're out by the thousand you're gonna add 100 years or ten years. you see the difference? and so if you keep adding on, you keep adding on and adding on and adding one law, well you're gonna end up with sentences that really don't make any sense. because they're gonna make a much higher sentence when the person had done something serious. now it may be a bad thing to carry a gun, it is, but is it a hundred times worse or ten times worse if you carry a gun when you're doing a little crime than a big crime? I mean I don't know why. You see, so when the Congress gets involved in all these add-ons and says do this add-on, but look it's Congress, they're the elected representatives. see that poses a problem. and somebody just asked me "well suppose we went and talked to the senators." please, me talk to the senator? and I'm not saying as the Supreme Court, nothing to do with that. Alright talk to them, talk to them, they'll be polite. but you don't have what used to be called in very olden days, I don't even know if this currently exists, but there used to be something called political juice and and that meant you actually had an impact, and that's a different matter, that's quite a different matter. so that brings me to the second recommendation, who has the political impact? the person I think who has the greatest political impact in this area is the Attorney General of the United States, and no one else. and therefore the second thing is somehow the Department of Justice must get on the commission's side. and to get on the Commission's side, you have to have staff people in the Department of Justice who are willing to spend four or five or ten years understanding sentencing and understanding the guidelines. Ron Gainer, Roger Pauly, they may not have liked what we came up with but they understood. they really understood it. and if you being somebody from the criminal section, the criminal division, and that person's going to stay there in his career for a year, I doubt it will work. maybe he's a genius but maybe, and it has to be one or two people and they have a voice on this commission and that voice has to be exercised in the long-term interests of sentencing guidelines. which means rationality, which means the Third Point, sure. and unless we can get them in there, and I don't know who can, but there has to be a staff voice representing the department who will be backed up by the Attorney General who will be a voice for, not just it's not shorter versus longer, I mean maybe it should be a little shorter in some of these areas, but that needn't be the issue, need't to be the issue. the issue has to be rationality, and the people who can do it have to be the staff of the Justice Department and the others have to know it too of course, but the staff of Justice Department, and that staff has to be backed up by the Attorney General. and the mystery here is how did the Parole Commission for so many years remain so immune from the influence of politics and the guidelines, you see we had when we were writing it we had the that was the model, and it didn't occur I think to anybody that the political involvement would be as great as it has been. I just don't remember anyone discussing that I think was sort of an assumption that it wouldn't be, it would be more like the Parole Commission, more professional, etc. Well it hasn't quite turned out that way. and then of course I do, as a third thing for the Commission, I think to the extent you can do it, simplification is important and everybody knows that. it's a question of bringing it about and it's hard to do. not really hard I think technically. and I don't think that necessarily you have to get rid of the- it might be nice to be able to get rid of that 25% thing, but I don't know that it's absolutely necessary. after all, the reason, one of the reasons, that first edition is as long as it is is because there's so many federal crimes, and you have to list each one and then you have to key them to behavior. look at any individual, except for the drug table, look at any individual crime it's not so long, until you start getting the add-ons and then it becomes a mess I think. I agree with you. but is that a technical job? in part, I think it is in part. I think I suspect but I'm not sure that a commission that is dedicated to simplification by removing every out on you remove somebody is gonna say what do I call it as the enemy here it's called the legal mind we wouldn't be here if we weren't lawyers and the first thing you learn in law school is start to make distinctions well that's the problem here I mean we make distinctions are you telling me that the person who does it this way isn't worse than the person who did it that way yep he is worse he is definitely worse but that doesn't mean you have to write a special animal that's hard for a lawyer to accept because by the time the lawyer has gone to all the trouble of figuring out that there really is a difference and it's sort of you know wounding not to turn that difference into something but that's that's a problem and I think I think block was right luckily he was an economist and he said don't make so many distinctions keep it simple all right yeah by coincidence I said roughly the same thing to the Roman Hruska Institute uh twenty-one years ago or so nineteen years ago and nothing happened but hope springs eternal and there we are that's foster professor at Yale possible on various issues from the live procedure but today sentencing guru and I wouldn't try to do my best to keep up with them I was going to start with the question of prior many work watchers astute following us but there would be that would lead to a overhaul of the Sentencing Guidelines something more than just a minute earring they are the real many visiting of the structure but as we've been talking about so far that has not occurred in steadily pertain with these same basic model leaving the guidelines advisory what has been the effect of hooker completing an advisory what's wrong with doing that is there I think that compassion sentencing and good let me make two comments before I had further first of all and I thought that everything my brother said is absolutely correct please don't they will have their own sense sense of what an error sense is one of light sentences nobody what a fair sentence is some people have ideas about them try to implement a fun idea that one speed one is fear maybe there is some other idea what's being there so etiology genealogy can $10 per business effect dee has done is tried and people like them and they may end up doing something is private history depending on their open circles here Sentencing Commission in its evidence gathering function provides agnostic and regions in terms of sex and information we also say this is I agree we present the sentencing guideline Mary you have to be not combined to follow that the date with great second one going to be very good accountant all right we have a look we grab all of these things until you want to be an expert in the element because there are you're going to work your way through this damn it unfortunately not lat and then there is something settle for simplification earlier yeah that's what makes it easy on to get reset I've been asked judge you know suck so this morning when they were describing as a possibly first started for economic mission everybody hated us and I wrote it down because some people might say not that much keeps change people criticized the guideline how much of that criticism is fair and the guidelines themselves and the work of attrition and how much of that is Congress what about my guests and one of the fugitives laughs to actually get since then on the base 34 years of job I didn't hate the guy but they were great like to you I have to say I was been a lot of time trying to avoid disparity within myself within sentences I work on the Southwest in those days of course it was a lot less we didn't have the southwest border of immigration and drug complicated cases that we have now as far as numbers but I think when those judges do like the type of system in fact in 2002 Tana's said the prior mention though there was a study made and 78% of the judges only agreed or somewhat agree perfected the guidelines that we do some wanted sentencing disparities 16% somewhat disagree there's probably disagree that there were six percent we need forever neutral in Italian in fact there were whether the guidelines that increased certainty and meeting purposes to seventeen seventy six percent of the judges agreed or somewhat strongly agreed or cement agreed and 16 percent the same 16 somewhat disagree or disagree with regards to increased fairness and meeting the purposes for sentencing 67% of the judges agreed and 24% disagree and so therefore when you look at that and it represented a return of about 69 percent of the federal district judges in the country it's a pretty good indication that the judges do like a guideline system and for those of us who serve without a guideline system there was terrible disparity and it wasn't just regionally in the United States so once sometimes it was in the same courthouse and the defendant and the defense attorney and the prosecutor even it was in the disparity the moment the judge was picked as to who it was sometimes it was just two of us in a courthouse and it didn't matter either point us to it was my case I'm not saying one of the other was right not to say there was just buried there was a very serious lack of transparency if anybody thinks that I didn't consider all those factors in that big manual with regard to a particular cases for what the appropriate sentence was I'm just wrong a worse it matter to me as Justice Breyer pointed up the amount of the drawer and of course that mattered to me the type of throat of course that mattered to me what level of roles and person played whether it was an increase in the role based on division leader or supervisor as opposed to someone that was minimally in office and was involved but less than normal all of those things might consider it was there a firearm involved of course I considered that and I didn't have to tell anybody so the defense in the prosecution really couldn't impress all the things that be golf in my head and trying to determine what the appropriate sentence was so really wasn't very transparent today that when I sent somebody to start considering those factors both sides gets the opportunity to to speak and go ahead and tell me why or why not without creepiness correct and I think that's the big difference and the fact that we have some transparency the fact the defendant and the prosecutor actually know what's going the judges head is one of the big things that the guidelines have added to sensing are they complex well maybe but 80% of the cases are in their drug immigration fraud or firearm cases so yes the Mangal is big but most of the time you'll need end up at certain portions of that bangle there are other portions that we really never have to touch because they're frauds that we probably see and so I don't find them very complicated at all to me the most important part is the fact that we have this discussion we know that everybody no matter what part of the country they are being charged in and trying it are actually looking at the same factors to make those decisions pre-sentence reports are awfully important we as judges should always keep in mind that is important from the probation officer we are the ones that still have to make the findings the idea that somehow we no longer make findings each others but there is relevant conduct or otherwise of course we think alignment that is ultimately our responsibility just because somebody mentions it doesn't mean that we actually didn't believe it so we have a lot of discretion from the standpoint of fact-finding and that's what was meant when the guidelines were created good that's what we just judges need to keep in mind that of course we have that ability to have discretion with regard to the fact-finding to goes on with each one of these phases and so are they complicated sentencing should never be simple these are very difficult - to pass judgment I have to say I had great grades little criminal experience one that stings judgment and I thought that was going to be the easiest part of my job to make a minute a crime I need to be punished how hard can that be actually it's a very complicated part of our job with or without guidelines because every single pre-sentence report every single individual every single prosecution of each case is different and with different fact-finding the nest of the law and different nuances and if it ever become simple for us to sing somebody we're not doing a very good job in our criminal justice system and so I think there is criticism but we tend to hear a lot from the same voices by and large judiciary just like everything else you tend to hear from the people that like to speak up on these subjects as opposed to the ones who just day in and day out here to do the job it's hard to tell whether people who don't through that system and Justice Breyer brought up a good point that I find easy to deal with and that's it parts transverses variances there there isn't a departure that you want to do with regards to a case that is out of the ordinary that is not in that manual the idea that you have to go to a variance where there are so much departure language in the mangle itself and frankly when the statute was written but if you go look at the legislative history they thought that 20% of the cases were going to be departures and that's not - partly what it is now based on within guidelines and departures based on government requests and so therefore we're not too far off in the legislative district that's factually how many times a day we have heard the call of simplification that seems to be leading with four models all seems recommend one way to get around the remedial aspect of clutter and get us back on either a presumptive or you know mandatory sentencing scheme is to simplify and apprentice I guess the guidelines I think it's judge saris I was going to ask you to take your comment further on that why are so let me just start off by thanking Koster having this symposium you know that one you had so many years ago that Festus Breyer spoke generally in an article which I've done here without an absolutely every baby judge school so it's really appropriate 30 years plus a very proud of the Sentencing Commission team that put together this really history Retin David who are sitting here holding really a lot of members of the team you know 50 years ago the Johnson Commission called out for a commission that would have the expertise to create evidence-based guidelines the statistician historians people who actually studied it and then in fact that the Sentencing Commission today is providing that very expertise it was as long and called out for me before we judge women are out of Sentencing Commission guidelines of fair and odd parity simplicity simplicity is only one of the many measures that you would have about thinking about a guideline system huh just want to go through with the first empowerment is very proportionate you want a fair Sentencing Commission guidelines that are proportionate to what the person actually did and the second I would say is if there are more into disparity doubts when I was working for Justice Breyer that's what you heard the Congress obviously stuck why should bank robber in one place get lot more than a bank robber in another complex simplicity but there's two complicated means it's not transparent on wood you can't understand it and fast I think luckily for all of us the word rehabilitation has come back into the way we're talking about sentencing but but going back and they're very related concepts because if it gets too high so the judges don't feel is proportionate they start to bury if it's too simple like a mandatory minimum so judges think there are too high that simple there's no disparity when people don't feel good about about the system so this is Justice Breyer said there's no perfect sentencing system it's a trade-off of values between all these different bowls that you might have I do think though it is too complicated right now I think I was myself right now but I think would be fair to say that there's hardly anyone who would disagree with that and one of the key issues of the convention began in the can ISM so many enhancements when he first started I'd love to read David's work when they said that the early Sentencing Commission only looked at those enhancements which were significant not trivial just a few of them the judges thought were relevant now we have I think we took afternoon and I there's a Christmas tree of enhancements with a hummock 19 broad guidelines it keeps going up and up and up and it's not just in tiny increments it's a huge increments because you have it's a logarithmic table thing if you know so if you're at one end of the table that's five years my I'm here and so it's I think one way that we can simplify within our current structure would be to eliminate the enhancements from the add-ons as we purchase and eliminate a lot of them and make them have post-booker world variance considerations I think you could probably probably pretty easily do that and yet implacable Congress or the individual commissioners of time you can just put them into the commentary so judges could think about it I think that you could get rid of all the cross references which which are almost never followed any way and are very hard to follow the taking from one guideline to a harder guideline and I also think that the hardest not which really didn't talk too much about its relevant conduct I think when I was a state judge I used to send something be in determining it took into account how many try to kill someone if you did even if it welcomed the actual charge of offense but what support judges and I think where the defendants system the system is when you're taking into account the conduct of other people on conspiracy or uncharged so I think you could narrow all of this within the current system you could simplify it you can make it more proportionate and and I think that in general you could have a you know work based on the evidence that we had of the Commission and making it a fairer system just an professorship I'm sorry I wanted to make sure to give you an opportunity to kind of to discussing first but also wanted to talk to you about that division of power between the sentencing judge and prosecutor yeah well you know um the authors of the sensing the format realize that a judicial discretion it's transferring to prosecutors and they work to avoid it the sentencing qalaat of commentary on this and the senate literally did not require a charged offense system because the charged offense system and Stephen Breyer has explained how they have this modified defense system the idea there was if you're gonna he sensed on the real offense but there's a matter of the prosecutor said I think the probation officer is going to let something else happen and despite all the paper in the corner you have the broad outlet because if you look at sentencing before the guidelines to the max just postal fraud postal theft up take a deep truck they went up they went up tremendously I in the first guy right there and I think I not intended so that fewer asthma Congress whose not ones that you had guideline sentences that prosecutors over to my judges can play much role back bargain and this began with the prosecutor at the defense attorney with the fat burning apartment so we can leave out this honorable victim position we're going to leave out the obstruction of justice it's not enough and to charge them actually very large means but maybe set inside it just totally grapnel that chief probation officer for you just took the New York off that Barnaby the dirty little secret and this here's a big incentive to plead guilty you're not going to get your best bargain unless you clean guilty so I don't think they're with the directorate's first prosecutors but I think that you're the problem which I like started out too high then to other things with much immoral it's really not in the guidelines for one we have the manager in them which are ridiculously high doubling sentence the lady is cooking crack she's getting maybe six dollars an hour by the dealers and if you haven't been charged that this adds a bunch of the bottom back operation you're going to get a very different sentence than if you charted is 20 20 grand population and that may be all this in the room at the time but you know suddenly everybody that relevant cabinet counts perform to me if she's gonna get a higher sense in with the mandatory minimums she was gonna get it very high sense particularly past felony drug conviction in any court complete world under 851 ferment her minimum to maximum here we had that happen and then perhaps the biggest mistake nobody much now that we're taking most of different judges so the partner justice says for the first time ever we're going to have a policy on charging a plea bargain or you're right down to the department justice we're gonna set up everybody its Attorney General for Merck 1989 and he said what should be our policy on charging human policy in 20 you throw right that one day charge the most serious readily provable effects I was a prosecutor early in the nineteen eighties we didn't have any such rule rule we had was requirements and principles of federal prosecution that we can gamble to the timeline of the attorney does attorneys mangle the same charge only what you think you have or will have to have usable power and charge when is just a trophy it's very different from the most serious whether the group of all offense especially when the three because later in 1993 on the enemy no effect the department justice made clear the most serious readily proven rules that includes mandatory minimums and always sharpen in through and always charge the attachment this these decisions so the guidelines which in the Burt Edwards work more severe than attended the mandatory minimums in certain areas and in every area this new department justice charging policy result and I think in such severe battle sentences the exponential increase of the federal prison population and extraordinary prosecutorial ability to use these mandatories accelerates to by force to reduce guilty pleas by those prosecutors who were so inclined and my is all and final answer is that when I was a baby prosecutor we were not a told be asleep you possibly can be and so the guy who plead guilty we were told that was that's not a roll and I learned that the culture has changed that the medium of exchange has changed what I thought was that serious sentence for a white-collar offender would be three years now let us double did you see really never punish the guy and I think this goes beyond the Sentencing Commission to larger questions that the Sentencing Commission is but one institutional trying to deal with that I do yeah I want to stay a little bit about prospero discretion frankly that's the way our system is built its charge split let's say they're speaking you get stopped by Department of Public Safety person and for the State Department the discretion is going to be with that person as to whether they're going to go party whether they're going to ticket whether they're good charging with that or not and so I don't know how we could change our system from the prosecutorial discretion whether it starts with law enforcement officials or goes all the way to the prosecutors themselves that's just the way our system is built you have vanessab only changed with the restor system our prosecution didn't you know that the Attorney General might be and things changed and things change with elections and everything else and unfortunately that's the way the system is and so I mean there's nothing that Commission can do with the question changing the decisions of what prosecutors do and don't do I fail to mention that one of the things that really intended mentioned before is I used to do a lot of guessing without you guys as to how much time somebody's going to spend in prison and I knew what I thought was right and so a lot of the times if it was a 20-year maximum of my you that might be a third more than not more than three thirds so I would kind of figure out well how long does this since has to be that's been mentioned and we did I there was no transparency with regards to that but that's what we did guilty pleas they've gone up a little bit because I think to some extent defense attorneys are able to visit with their clients and explain to them if you get convicted this is why think what's going to happen some people say well you're threatening somebody to plead guilty because you give them credit for acceptance of responsibility my answer to that is that really is part of our culture as a child I would go to my parents if I tell you I did something wrong and admitted it to punish me less and it seemed to work and so I did think there is some credit to be given for acceptance of responsibility the amount of time the truth didn't sense mean I think it was a very good idea and yes there is a fifteen percent deduction for good behavior if you get more than twelve months sometimes you send somebody for twelve months in one day and they look at you like why are you throwing that one day at me and you have first place because we can get up to fifteen percent of the time off it's more than twelve months and and the good time is really basically appreciated very much by the people who worked in the prison system because they say well this makes it easier for us and have some control over the rest of good behavior within the prison system at one time when I was chairing the Commission we had some Russians come with it and I was trying to explain but on behavior there was a question immediately why do you all have any trouble taking care of the way people behave in the prison system well I suspect their system a little bit different as now they keep control within the prison system but it is that's one of the reasons for this and I and the penalties didn't get higher somebody said and most seems like other times because I think Congress felt that and we do they have good jobs good education and family structure all those things and I think maybe the penalties did get driven up in the white collar criminals in it and I suspect that was probably because we tended to identify more with them as judges because we thought they had to come to the same background this was going to be very hard on them and all these kind of things and so yes penalties did rise but I think that's one of the reasons they did one second about mandatory minimums these sentencing fishermen say 2011 came out with a report we were all over the place whether we did some different I didn't believe in them but others did but we all did it Rhian was that they were too high and swept ii thought that's what we've all agreed on and and things do change how there is the word it's evolutionary people's views have changed on this so the the last congressman one of my big disappointment finishes is that we didn't actually pass the legislation which had five partisans or both side you know everything people agreed that that to lower the mandatory minimums and i think to some extent that the prosecutors always have that hammer and so it or not to the extent they have that camera what to charge and when to charge it if there's going to be on some really unfair sentencing going on whether it's the 851 enhancement the double or the stacking that brings it up to life it's really a far bigger problem in my view in this in the system right now that they've been guideline issues and of course the guidelines ever made to be consistent with them so i think we missed an opportunity the last congress but i don't like to say never I mean the Sentencing Commission lowered drug penalty by an average two years 43,000 people eligible for lower sentences that I think there is an urge to try and make sentencing warfare and proportionate but most importantly I think Congress's pay attention and that's it's just surprised that they don't want to write the laws and well they not as hopeful in the sense that I think right now there are other things higher on the table priorities that maybe to the Congress I became so close last time so close that I add that I am hopeful that that part of a national discussion again let me respond to you doesn't assist observations to one our sensitive sentences are too severe and secondly the prosecutors have too much discretion commence in their hand I don't think that's what the second point there's really anything that you go back traditionally is points out this is the way the system is created we try to take these things County Commission as for the first point of the severity of sentences interestingly enough the Commission can't do something about it and has done something about and I think that well Cirrus just mentioned it about the reduction on drugs - - it was a monumental change and the reason it was successful in mind um was bipartisan or nonpartisan wasn't because the Commission took a look at the evidence and what did the evidence show we had a prior example of where there was a retroactive application junction between the difference between powder and crack cocaine and what an ultimately came ultimately came was that there would be this reduction to be up to individual judges to determine whether or not they wanted to readjust the sentence of a defendant now might think oh that's terrible there were disparities and so forth so I might be right but we found the Silverlight what was the sole a silver lining was that we now had two groups upon those people who sentences reduce and those people who sentences and we could follow them for five years which is what the Sentencing Commission did what was the inclusion the Sentencing Commission found that there was really from a statistical point no disparity between the citizen rates for those people who have a shorter sentence than those people at a longer sentence what did that tell us it told us that it's not necessarily a longer sentence that is a sacred sentence and it's paper it told us that and we were able to publish that and we were able to tell 846 judges of whatever was look at these statistics look at them from a national point of view that they informed your judge as to whether or not the longer sentence so I'm a great believer in gathering this but it's important to try to have some evidence base sentencing system because if you don't have individuals good intention individuals doing what they want also tells us to other things something else in terms of sentencing we have seen we have seen in certain areas a high degree of compliance with some guidelines by by judges and a lot of level compliance by my sentence it has and within a particular rank it is told us a lot fraud as an example we have seen judges basis in large numbers follow the sentencing guideline range where there are shorter sentences it's the outlier is the high loss finger where you see the disparity between the sentencing guidelines and and what the judges do now the question should that be fixed and that's really up on a lot of things including what number of cases you talk about you're talking about thousands of cases you're talking about on for many days because that's that's an important consideration secondly that very oddity but it's a political issue and the judge was in large part in cooperation or along with prosecutors who see you on a daily basis trying to come to something as what is fair sentencing and then we see it statistically and we were ordered on it statistically you've been one with the sentencing guideline for child pornography and say why do you enhance a sentence for the use of the computer internet by Congress anybody who has or knows of the computer now is the heartland almost every defendant uses a computer so why is it matter well today I'm on this Congress making them so I mean I'm a believer that Congress should mean sentencing basically these sorts of characteristics and so to the Commission which will base their opinion on the evidence what does the evidence show and I think that that is an important factor and that may go to a professor exists first one because it ultimately may make the Commission look at what participant is what is the truth of the matter internally sexy and then you've formed some opinion as to whether or not a sentence is too severe respond to a couple of what's on first notice to go back to book her for a moment home Justice Breyer said I told them that he was talking twenty years ago I told them in 1999 that all the guidelines and something's out of whack in the park for the fortune does not really the guidelines set the guidelines required the judges follow their rules not only with respect to calculation of the guidelines offense level and all that but also their rules with respect to departure which for a long time very rigid and narrow but that is sort of the system we had now thanks to justice Breyers would be nil opinion and Booker and you know the surveys when the FJC before but were really from the time of guys who should up until to the lesser man in 2001 the great majority district judges did not like the guy thanks now they do like the system and it's the post-booker system which allows the judges to Department are very aware that I want to call it secondly you know I disagree so much I'd rather that we don't really have to worry about this problem of the four whoever's putting people in jail for decades and decades because there's so few cases if you happen to be an accountant and a public company and you participate in a security spot and you just got paid your records regular salary you may not about how far along it was and any type of doing your job you the guideline sentence is ridiculously high and in about half those cases judges now in the post Booker regime do depart significantly it's not just a party I'm worried about the judges who are not where we're imposing the guideline sentence even if it's only 87 defendants a year who are unnecessarily having their lives taken away from them one other thing I wives I'm very grateful for what the Commission has done but I think you can do more this destroyed table having the quantity of drugs tied to the mandatory minimum means this okay in fiscal year 2016 a lot of defendants who are convicted of a crime carry a mandatory Belem nearly 40% of them received relief from that healthy either because they provided substantial assistance and a prosecutor filed a motion or because of the safety belt or in five or some cases because of both those defendants guidelines sentences were just as high as the mandatory minimum because the man guidelines is pegged to the manager and even if you're a little bit below the quantum level the triggers a new mandatory your sentence is going to be up close to that and there's a way to solve this problem and that is to not have the drug table be an extrapolation from the cliffs of unfortunate sickness mandatory minimums and here such such high-handed technologies I remember for the division argument for years just didn't want to pay people by Oh sounds like you're getting a fascinating enterprise I'm going to speculate what purely evidence-based guidelines will look like seriously you want to say something in closing we've got a total of running out of time well they're just very quickly I'm gonna go back to this notion of these Commission and whether we revolutionary or not lucky to be there at a time when we looked at all the major groups shall we say their current evidence about what was going on and what judges were doing and it wasn't just in reducing drug penalties based on the evidence about what judges were doing but we also looked at the career offender guidelines and with a very common cycle I think before one o'clock on on how the statute needed to be changed based on current evidence we as dangerous and who wasn't dangerous in the immigration context we looked at what judges were doing on when it was too high and recalibrating it now I don't want to go through all the granular details of each one of it but I just want to assure folks that it's not a it's wonderful in the original history was we haven't been stuck there and we have been following the data primarily what judges are doing and also what what criminal justice followers are doing say a juvenile crimes have been following that science and really both recommending to Congress changes and doing it ourselves so excited I know people should everyone should have a chance so I'll just stop there as a privilege to meet you thank you so much I think it's fabulous and you're having this conference and and what it called to mind your a because just to the interest in the intellectual work and the thought is very very helpful and and I thought but Kennedy said which is true when we started this out he said but one virtue of moving to the guideline system aside from others in a very general aspect is it will get people thinking less about did he do this thing and because most people did ha but more in the direct I'm saying you shouldn't think of that you should okay but more in the direction of what do we do with this human being and the very fact that you're having this conference about suggests that that part at least it has been working up to a point and if there are other things listening to the problem at that general level I think you know there are other countries if they want to turn power over to the prosecutor actually to do the sentencing actually to do the prosecution they do it but they have schools to train them and they say if you are going to be a judge will train you to be a judge and that's true in France it's true in Spain I don't know about Canada but I'm at a university and so I cannot help but think of that very general direction I know it's pie-in-the-sky but why not and the third thing it makes me think of is an article I read the other day which said that there are 66 percent of the American population employed in the year 2000 and today there are 62 percent and the person who writes about that difference of four percent which is about 12 million people says that quite a few of those millions are people who As Justice Breyers knows, I always read statutes literally, right? The statute says the top of the range must be no more than 25% of the bottom of the range. Every simplified table I have sent to the commission has the top of the range no more than 25% of the bottom of the range. it says the top has to be no more than 25% of the bottom, all of my Well Peter Hoffman was a when you talk about the disparity, about the demographic disparity, I think we did the first demographic disparity. Or regression analysis. As they're going about some simplification. Judge Newman.

Election results

Republican primary results[1]
Party Candidate Votes %
Republican John Boozman 16,330 43.24
Republican Gunner DeLay 10,431 27.62
Republican Jim Hendren 9,403 24.90
Republican Brad Cates 1,602 4.24
Total votes 37,766 100.00
Republican primary runoff results[2]
Party Candidate Votes %
Republican John Boozman 19,583 56.58
Republican Gunner DeLay 15,029 43.42
Total votes 34,612 100.00
Democratic primary results[3]
Party Candidate Votes %
Democratic Michael Hathorn 13,282 47.13
Democratic Jo Carson 13,087 46.44
Democratic Norman "Bill" Williams, Jr. 1,813 6.43
Total votes 28,182 100.00
Democratic primary runoff results[4]
Party Candidate Votes %
Democratic Michael Hathorn 15,356 52.61
Democratic Jo Carson 13,832 47.39
Total votes 29,188 100.00
Arkansas's 3rd congressional district special election, 2001[5]
Party Candidate Votes %
Republican John Boozman 52,894 55.55
Democratic Michael Hathorn 40,137 42.15
Green Sarah Marsh 1,773 1.86
Freedom Party Ralph Forbes 419 .44
Total votes 95,223 100.00
Republican hold


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