The meeting was called to order at 11:15 a.m. by Chairman Richard P. Conaboy in the Commissioners' Conference Room. The following Commissioners, staff, and guests participated:
Richard P. Conaboy, Chairman
Michael S. Gelacak, Vice Chairman
A. David Mazzone, Vice Chairman
Wayne A. Budd, Commissioner
Michael Goldsmith, Commissioner
Deanell R. Tacha, Commissioner
Mary Frances Harkenrider, Ex Officio Commissioner
Edward F. Reilly, Jr., Ex Officio Commissioner
Phyllis J. Newton, Staff Director
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Paul Hofer, Special Projects Director
Lou Reedt, Senior Research Associate
Amy Schreiber, Staff Attorney
Fred Bennett, Representative, Practitioners' Advisory Group
Julie Stewart, President, Families Against Mandatory Minimums
Lyle Yurko, Representative, Practitioners' Advisory Group
Jonathan Wroblewski, Legislative Counsel
Commissioner Julie E. Carnes participated via telephone.
Chairman Conaboy introduced Dan Seigal, a federal public defender on temporary assignment to the Commission, and Matt Haggerty, a Catholic University law student completing an internship.
Motion made by Commissioner Budd to adopt the minutes of the December 12, 1996, meeting; seconded by Commissioner Tacha. Passed unanimously.
Safety Valve Retroactivity
Option One - Full retroactivity: Option One would provide a two-level reduction in offense level for all inmates sentenced under the guidelines who successfully can demonstrate to the court that they (1) met all five criteria in 5C1.2 at the time of sentencing, and (2) were subject to a base offense level determined under 2D1.1 of 26 or greater.
Option Two - Retroactivity to effective date of safety valve: Option Two would limit retroactive application of the amendment to defendants sentenced on or after the September 23, 1994, effective date of the safety valve.
Option Three - Alternative FAMM proposal: Option Three would make the safety valve amendment narrowly retroactive for those defendants who already have been granted safety-valve reductions.
Option Four - Five year minimum group: Option Four would retroactively grant the two-level reduction only to those defendants whose guideline range was constrained by the five-year mandatory minimum and who, by virtue of the safety valve, received a sentence below that minimum.
Motion made by Commissioner Gelacak to adopt option two; seconded by Commissioner Budd. Failed, 2-4-1. Commissioners Budd and Gelacak voted in the affirmative, with Commissioners Conaboy, Goldsmith, Mazzone, and Tacha voting against, and Commissioner Carnes abstaining because of litigation in the Eleventh Circuit on this issue.
In discussing the issue of retroactivity, each commissioner voiced his/her general and specific concerns. Commissioner Gelacak, in response to an argument opposing retroactivity, stated that Congress passed the safety valve provision in response to some perceived injustices of mandatory minimum penalties and expected the Commission to take action. Commissioner Budd agreed and stated that he was most troubled about the liberty concerns and cost in human terms; concerned that the least dangerous drug offenders appeared to be disadvantaged based on a technicality.
Commissioner Goldsmith stated that he believes the Commission should use retroactivity sparingly, and that unless there is a defect in the system and an amendment was made to correct a prior injustice, retroactivity should not be provided. He also voiced concerns about the balance between benefits received and cost in judicial resources. Commissioner Tacha opposes all retroactivity, with a few exceptions, and announced her opposition to the safety valve retroactivity, in particular. She argued that in this instance more than 6,000 offenders will be affected, and that the statute specifically directs the Commission to take into consideration those numbers as well as the burden on the system. Commissioner Reilly stated that consideration must be done with regard to the effect on finite court resources because of the influx of old-law defendants that will result from the abolishment of the Parole Commission. Commissioner Mazzone announced his regret at voting in the negative but agrees with Commissioner Goldsmith regarding the use of retroactivity for cases in which the Commission needs to correct injustices. Chairman Conaboy agreed with those voicing concerns about the burden retroactivity places on the justice system, stating that it was not a matter of depriving individuals of something available in the past. Agreeing with Commissioners Goldsmith, Tacha, and Mazzone, the Chairman believes retroactivity should be used to correct prior injustices.
Sexual Crimes Against Children
Proposed amendments implement the directives contained in sections two (relating to increased penalties for certain conduct involving the sexual exploitation of children) and three (relating to increased penalties for use of computers in sexual exploitation of children) of the Sex Crimes Against Children Prevention Act of 1995 (Public Law No. 104-71).
Motion made by Commissioner Tacha to publish for comment in the Federal Register; seconded by Commissioner Goldsmith. Passed unanimously.
General Counsel Steer stated that the Act also requires the Commission to report on certain information concerning offenses involving child pornography and other sex offenses against children. Paul Hofer described the proposed research plan, including collaboration with the General Accounting Office, who will be reviewing the effectiveness of treatment for sex offenders.
Motion made by Commissioner Tacha to adopt the proposed research plan; seconded by Commissioner Goldsmith. Passed unanimously.
John Steer and Jonathan Wroblewski updated the Commission on pending legislation, including that relating to immigration, telecommunications, terrorism, juvenile justice, drugs, mandatory restitution, vulnerable victim, and increased penalties for escape from federal prison.
Chairman Conaboy, reporting on the Commission's January 12-13th retreat, stated that thorough discussions were had with invited guests, including former Chairman William Wilkins, Jr., Professor Dan Freed, and Professor Michael Tonry, on issues relating to guideline simplification efforts. He complemented staff on its research work related to simplification and said that the information will be made available. He reported that the Commission is now narrowing the scope of simplification issues to be considered in more detail.
Judicial Advisory Group
Chairman Conaboy, reporting on the appointment of a new Judicial Advisory Group, stated that the group was comprised of members from each circuit and the Criminal Law Committee. The Honorable Anthony J. Scirica, of the Third Circuit Court of Appeals, has been selected as Chairman. He stated that their first meeting is tentatively scheduled for April.
Supreme Court Update
General Counsel Steer, reporting on the Supreme Court, briefed the Commission on five pending or recently decided Supreme Court cases. These cases relate to LSD carrier mediums (Neal), standard of review for departures (Koons), mechanism for substantial assistance departures (Melendez), definition of "use" as it relates to firearms (Deal), and prosecutorial charging practices relating to race (Armstrong).
Public Service Announcements
Amy Schreiber, reporting on public service announcements, stated that the Commission, in conjunction with a Potomac television station, is working to develop messages targeting young people on the severity of federal drug penalties. She stated that the public service announcements should be produced and distributed by the middle to end of the summer.
Staff Director's Report
Staff Director Newton announced the selection of a judicial fellow, Elizabeth Woodcock, an assistant U.S. attorney from Maine. She reported that the TAS and Legal Hotlines will be combined under the Office of Training and Technical Assistance, but staffed by both TAS and the Office of General Counsel. She reported that the corporate symposium proceedings book is at the printers and will be distributed to members of Congress, symposium participants and attendees, law schools, and others. She stated that staff was working on completion of the Annual Report, and that the number of overall cases appeared to be lower except in the area of immigration. She announced that the Commission has a Web page, WWW.USSC.GOV, that will include general information, research reports, Guidelines Manuals, legislative developments, and training information.
Motion made by Commissioner Budd to adjourn; seconded by Commissioner Tacha. Passed unanimously. The Commission adjourned into executive session at 12:14 p.m.
United States Sentencing Commission