1 year, even though the necessary period of medical treatment might be only 1 month or less. Another defendant comparably situated who could afford to buy his own medical treatment could avoid that confinement altogether. And this confinement for medical treatment, pegged to a mandatory minimum term having absolutely no relationship to the necessary treatment, is something which I am frankly surprised to find in a seriously entertained piece of legislation in the American governmental system. I don't think it unreasonable or immoderate to say that. I thank the committee for this opportunity to have made my views known. I speak from a platform of well in excess of 200 hours study of this bill. I don't believe that any lesser quantum of study that that would equip one to speak knowledgeably concerning its contents. This is a bill which simply cannot be read intelligently by starting at section 101 and working forward. It is necessary, minimally, to read it at least twice-once for a general sense of what's there and then a second time in order to recognize the impact on those sections of the bill encountered at an earlier stage of the propositions encountered later on in one's consideration of the legislation. Mr. HALL. Your bottom line concept is that the guideline concept, as such, is not good. Mr. LEWIS. The guidelines concept? Mr. HALL. Yes. Mr. LEWIS. Yes, sir, if anyone suggests that it is good, I would challenge him or her to tell me what provision would be made in a guideline for a plea of guilty. Any attempt to do so is necessarily doomed. The only question is, off of which the three edges of the cliff will it fall. A guideline which builds in consideration, offense and offender being equal, for a plea of guilty necessarily penalizes the exercise of the right to trial. And if that were to be deemed constitutionally acceptable, I hope it would not be deemed acceptable as a matter of policy. On the other hand, if the guideline does not provide for a plea of guilty, then there is no advantage to such a plea, and the criminal justice system will back up in a matter of months. A third consideration is that if there is a built-in promise of leniency in such a case, I think it may be counterproductive to give such promises in advance in a form of a chart which would tell any opportunistic malefactor that he can know in advance that he will not be imprisoned if he is caught, provided only that he pleads guilty. Mr. HALL. We hear and we have heard through all of the testimony in all of these hearings that there is a great disparity of sentencing throughout the United States today. Maybe there is. Is that in itself all bad? Mr. LEWIS. No, sir; no, sir, it is not all bad. First off, I don't believe that there is or ever can be a set of statistics which would show that there is a meaningful disparity in the sentencing of people similarly situated. Similarity is in the eye of the beholder. And I can readily see in almost any offense that you can name that there could be circumstances attending that offense which could result, and properly should result, in immense disparity in the sentences imposed on two different offenders. More than that, however, the fact of this disparity means that the criminal justice system is working; perhaps imperfectly, but any system will work imperfectly, most assuredly including the Sentencing Commission system. What it means is that we are giving consideration to individuals. It means that there are people at work here instead of a chart, instead of a mechanical operation. And no, sir, that is not bad. That is what our system of Government really, hopefully, is about. Mr. HALL. Is there any question that any member of the staff might wish to ask? [No response.] Mr. HALL. Again, I want to thank you for your testimony. We appreciate your coming down and giving us the benefit of your thoughts, and I share a great many of your thoughts today. The subcommittee is adjourned. [Whereupon, at 5:10 p.m., the hearing was adjourned.] LEGISLATION TO REVISE AND RECODIFY FEDERAL CRIMINAL LAWS MONDAY, APRIL 24, 1978 U.S. HOUSE OF REPRESENTATIVES, OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met at 2:15 p.m. in room 2226 of the Rayburn House Office Building; the Honorable Sam B. Hall, Jr., presiding. Present: Representatives Hall, Wiggins, and Hyde. Staff present: Thomas W. Hutchison, counsel; Kathy Zebrowski and Robert A. Lembo, assistant counsel; and Raymond V. Smietanka, associate counsel. Mr. HALL. Today the Subcommittee on Criminal Justice brings to a close its hearings on legislation to recodify Federal criminal laws. During the course of these hearings, which number 23, the subcommittee has been exposed to a wide range of viewpoints about the legislation. I think I can speak for every member of the subcommittee in saying that our hearings have been most useful. All of the witnesses have contributed to our understanding of the issues involved in the legislation, and we are grateful for their testimony. The subcommittee will begin its markup meetings on this legislation within the next couple of weeks. In the meantime, the members of the subcommittee will be reviewing the testimony and statements, as well as other materials, in preparation for those deliberations. Our hearing record will remain open until May 15 for the receipt of additional statements. I would suggest that any person or organization desiring to submit a statement do so as soon as possible so that the statement can receive the fullest possible consideration. Our hearings have been roughly divided into two parts-one part focusing on substantive offenses and the other on sentencing. Today's hearing will be a blend. Part of the testimony will take up some of the broader issues involved in the legislation, such as prosecutorial and judicial discretion. Other testimony will address specific provisions of the legislation, both sentencing provisions and substantive offense provisions. Our witnesses today have varying backgrounds and experience. I am sure that their testimony will be most helpful to us, and I look forward to what they have to say. Our first witness is William J. Anderson, Deputy Director of the General Government Division of the General Accounting Office. The General Accounting Office has been studying disparity in criminal sentencing and prosecutive practices in the Federal system, and Mr. Anderson will report on that study. He has submitted a prepared statement and, without objection, that statement will be made a part of our hearing record. [The prepared statement of Mr. Anderson follows:] STATEMENT OF WILLIAM J. ANDERSON, DEPUTY DIRECTOR, GENERAL Mr. chairman and members of the subcommittee; as requested, our testimony today will focus on the work we performed relative to disparities in criminal sentencing and prosecutive practices in the Federal criminal justice system. Although our final report has not yet been completed, we will discuss our progress to date and provide information that may be helpful during this Subcommittee's consideration of H.R. 6869 and its companion bill, S. 1437. Our testimony by no means covers all aspects of these bills; however, the information we are about to present, particularly with respect to prosecutive and sentencing disparities, should be useful to you during your deliberations. Certain provisions contained in these bills demonstrate the concern that Congress has about the existing disparities in the sentencing process and we believe that many of these provisions have merit. However, we found that disparity is not limited to the sentencing process, but is a problem that exists throughout the Federal justice system, from arrest through parole. In order to comprehensively deal with disparity as a system problem, we believe that more emphasis should be placed on guiding and monitoring the use of discretion throughout the process. Before this can effectively be done, however, adequate disparity data must be collected and analyzed to better assess the nature, extent, and impact of the problem. Our testimony today focuses on the two most visible points of disparity, prosecution and sentencing. We will illustrate that disparities (1) do exist in criminal prosecutions and sentences, (2) are caused, in large part, by the discretion exercised by U.S. attorneys and district judges, (3) are not readily apparent because of the lack of program monitoring and reporting, and (4) must be addressed in a comprehensive and careful manner if feasible solutions are to be developed. Our information is based on a review of case files and probation reports for selected crimes, and interviews with judges, court administration personnel, and U.S. attorneys in five district courts, (Eastern District of New York, Southern District of California, Central District of California, Western District of Texas, and the Northern District of Alabama). The statistics and case examples we will present show a pattern of substantial differences in sentencing and prosecutive practices among U.S. attorneys and district courts. We recognize that some of these disparities are explainable and justified due to the types of crimes and the characteristics of the defendants. However, the desirability of some other differences may be questionable. These differences occur when different treatment is imposed on defendants with similar backgrounds convicted of similar crimes. Based on available data and studies, such as the Second Circuit sentencing study, we believe that disparities of this type may pose a significant problem to the administration of criminal justice. I will now summarize our findings and conclusions. DISPARITY IN CRIMINAL SENTENCES AND PROSECUTIONS As you know, discretionary decisions made by each segment of the Federal justice system affect the way criminal defendants are treated and, ultimately, the effectiveness of the system itself. The treatment of a particular defendant from the time of arrest and prosecution through the courts and parole is determined by how Federal officials throughout the process exercise their discretionary powers. In many instances, these discretionary decisions result in disparities, where defendants comparably situated and with similar backgrounds may be convicted of similar offenses, but receive different treatment. For example, in criminal sentencing, disparity exists in three areas where judges exercise discretion: 1. In the decision to incarcerate a convicted defendant; 2. In the length of sentence imposed on an offender; and 3. In the use of sentencing provisions that affect the time a defendant must serve before being considered for parole. |