Webcast of House hearing on federal sentencing after Booker available

As reported in this prior post, this morning  the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is conducting a hearing to examine the post-Booker federal sentencing system.  The hearing is titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," and a webcast can be accessed via this calender entry  [Update: Written testimony from the witnesses are now linked here].  I will do a little live-blogging as I follow along.

10:04:  Rep. James Sensenbrenner (R-WI) has begun the hearing and is reading a prepared statement in which he complains at great length about sentencing disparities and says that Booker, in his view, "destroyed the guidelines."  He is also complaining that the US Sentencing Commission has not proposed a "Booker fix" in the last six years, and also complaining about the USSC making its new lower crack guidelines retroactive, and also complaining about the USSC's operating budget going up.

10:06:  Rep. Bobby Scott (D-VA) has begun his opening statement and says that Booker was the fix, not something that needs fixing.  He also is noting that the number of judicial variances from the guidelines went down in the last quarter of FY11 and that prosecutors sponsor and/or do not object to the vast majority of non-guideline sentences.

10:10:  Rep. John Conyers (D-MI) says a few things off the cuff that do little more than make Rick Perry seem eloquent by comparison.

10:20: USSC Chair Judge Patti Saris (very detailed written testimony here) begins witness testimony by stressing how Supreme Court Booker caselaw has impacted federal sentencing.  She says the guidelines exert a "demonstrable gravitation pull" on sentencing, but also says that USSC recognizes "weaknesses" in the advisory guideline system.  Chair Saris says USSC recommends these legislative changes by Congress:

1. Congress should make reasonableness review tougher, especially for non-guideline sentences
2. Congress should clarify statutory directives that are in tension
3. Congress should clarify and codify that guidelines should be given substantial weight

Saris also indicates that three reports are forthcoming from the USSC: one on mandatory minimums, one on child porn sentencing, and one based on the testimony offered today about the post-Booker system.

10:26:  Matthew Miner, White & Case partner (written testimony here), begins his testimony by stressing disparities between sentencing outcomes in Southern and Northern districts of New York.  He urges a "presumptively applicable" guideline system and recognizes that this system needs to comply with Apprendi/Blakely rights and says that it should not be too hard for juries to make special sentencing-related findings. Paraphrasing: "If we can trust juries to make findings in death penalty cases, we can trust them to find aggravating factors for guideline sentencing."  As a first step, making reasonableness review tougher would be a modest reform that would "go a long way" to reducing disparity.

10:31:  William Otis, Georgetown Professor Law (written testimony here), begins his testimony by stressing importance of being a nation of laws, but says sentencing is now not a system of law but "a lottery."  He notes that downward departures, which "favor the criminal," are 20 times more common than upward departures.  He complains that the USSC has "compounded the problem" of Booker by encouraging departures based on offender characteristics, and that it has embraced a system that is "random and watered-down."  

10:36:  James Felman, Kynes, Markman & Felman partner (written testimony here), begins his testimony by saying advisory sentencing system "best achieves" the goals of Sentencing Reform Act.  He stresses that sentences have not gone down since Booker in fraud and child porn cases, but rather have gone up greatly since Booker.  Says Mr. Otis is "incorrect" that the recent trend show continued movement away from guidelines, and he also notes that departures and variances from guidelines are modest.

I will cover follow-up Q & A in a separate post...