Nuanced and astute (and vague) testimony from DOJ at Sentencing Commission hearing on mandatory minimums

As detailed in this prior post, the United States Sentencing Commission today is conducting a public hearing in Washington DC "to gather testimony from invited witnesses regarding the issue of statutory mandatory minimum penalties in federal sentencing."  The agenda and a list of invited witnesses scheduled to testify today at the USSC can be found here, and this morning the bulk of the written testimony submitted by these witnesses are now linked through this agenda page.

Providing a "View from the Executive Branch" (namely the views of the current US Department of Justice) is Sally Quillian Yates, US Attorney for the Northern District of Georgia.  Her submitted written testimony is available at this link, and it is today's must-read for anyone and everyone still following post-Booker sentencing debates and curious about how the Obama Justice Department is staking out ground in these debates.  Just about every paragraph of the DOJ testimony coming from USA Sally Gates is interesting and important, and here are a few extended snippets that really caught my attention:

My testimony today is offered in the context of an ongoing study at the Department of Justice that began soon after Attorney General Holder took office.... The Sentencing and Corrections Working Group is conducting the most comprehensive review of federal sentencing and corrections in the Executive Branch since at least the passage of the Sentencing Reform Act....

The results of the Working Group are guiding the Department’s policies regarding sentencing.  To begin, the Administration has been working hard with Members of Congress to see the enactment this year of legislation to address the current disparity in sentencing between crack and powder cocaine offenses, including the existing 100-to-1 quantity ratio. In addition, last week, the Attorney General issued a new Department policy on charging and sentencing in a memorandum to all federal prosecutors.  This new policy recognizes the reality of post-Booker sentencing and the need for an appropriate balance of consistency and flexibility to maximize the crime-fighting impact of federal law enforcement.  We are also working on new ways to examine racial and ethnic disparities in sentencing beyond federal cocaine sentencing policy to determine if disparities are the result of race-neutral application of statutes and charging decisions and otherwise justified; and we are working on initiatives to promote more effective prisoner reentry.  These and other measures will be announced shortly....

The federal prison population, which was about 25,000 when the Sentencing Reform Act was enacted into law, is now over 210,000.  And it continues to grow.  Much of that growth is the result of long mandatory sentences for drug trafficking offenders.  While these and other mandatory sentences have been important factors in bringing down crime rates, we also believe there are real and significant excesses in terms of the imprisonment meted out for some offenders under existing mandatory sentencing laws, especially for some non-violent offenders. Moreover, the Federal Bureau of Prisons is now significantly overcapacity, which has real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.

At the same time, since the Supreme Court’s decision in Booker, Sentencing Commission research and data – and the experience of our prosecutors – have shown increasing disparities in sentencing.  We are concerned by, and continue to evaluate, research and data that indicate sentencing practices (particularly those resulting in lengthier incarcerations) are correlated with the demographics of offenders.  Further, with more and more sentences becoming unhinged from the sentencing guidelines, undue leniency has become more common for certain offenders convicted of certain crime types.  For example, for some white collar offenses – including high loss white collar offenses – and some child exploitation offenses, sentences have become increasingly inconsistent.  The federal sentencing guidelines, which were originally intended to carry the force of law, no longer do. Thus, for these offenses for which there are no mandatory minimums, sentencing decisions have become largely unconstrained as a matter of law, except for the applicable statutory maximum penalty. Predictably, this has led to greater variation in sentencing. This in turn undermines the goals of sentencing to treat like offenders alike, eliminate unwarranted disparities in sentencing, and promote deterrence through predictability in sentencing.

Our study has led us to the conclusion that in an era of advisory guidelines, mandatory minimum sentencing statutes remain important to promote the goals of sentencing and public safety.  At the same time, we recognize that some reforms of existing mandatory minimum sentencing statutes are needed and that consideration of some new modest mandatory minimum sentencing statutes is appropriate....

In the past, the Sentencing Commission has taken the position that mandatory minimum sentencing statutes were not needed, in part because the sentencing guidelines were themselves mandatory.  This position was also put forward for many years by advocacy groups such as the American Bar Association and Families Against Mandatory Minimums as well as by federal public defenders. However, in our review of federal sentencing over the last year, we have found little support from these groups, in Congress, or the Federal Judiciary for reinstating the presumptive nature of the sentencing guidelines.  In the absence of such a change to the federal sentencing structure that might return presumptive sentencing guidelines (an overhaul that we are not now recommending), we believe that mandatory minimum sentencing statutes must go hand in hand with advisory sentencing guidelines.