On Oct. 12, the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held its first hearing on federal sentencing since March 2006. The title—”Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years After U.S. v. Booker“—apparently reflects the subcommittee majority’s views on post-Booker1 sentencing. Representative James Sensenbrenner, chairman of the subcommittee, stated that he is “deeply concerned” with federal sentencing due to the “increasing frequency of downward departures.”2 Those who commit child pornography or fraud offenses “are in luck,” he added, explaining that these crimes have seen particularly high rates of below-guideline sentences.3
Proposals to address these concerns have run the gamut. One witness recommended that the Sentencing Reform Act be repealed and the Sentencing Commission abolished.4 Another proposed that sentencing guidelines once again be presumptively applicable, circumventing Booker by relying on juries to make findings on aggravating factors.5 And Judge Patti Saris, chair of the Sentencing Commission and Massachusetts district judge, testified about the problems sentencing courts have encountered in the post-Booker sentencing regime and recommended a more robust system of appellate review.
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