Chair Murphy called the meeting to order at 1:02 p.m. in the Commissioners Conference Room.
The following Commissioners and staff participated in the meeting:
Diana E. Murphy, Chair
Ruben Castillo, Vice Chair
William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Sterling Johnson, Jr., Commissioner, participating via teleconference
Michael E. O’Neill, Commissioner
John P. Elwood, Commissioner Ex-Officio
Edward F. Reilly, Commissioner Ex-Officio
Timothy McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel
Judith Sheon, Special Counsel
The following members of the Practitioners Advisory Group participated:
L. Barry Boss, Esquire (Co-Chairman), Asbill, Junkin, Moffitt & Boss, Chartered
James Felman, Esquire (Co-Chairman), Kynes, Markman & Felman, P.A.
Alan Chaset, Esquire, Law Offices of Alan Chaset
Margaret Colgate Love, Esquire, Brand & Frulla
Tom M. Dawson, Esquire
James Gibson, Esquire, Williams & Connolly, LLP
Carmen Hernandez, Esquire, Defender Services Division
Kyle O’Dowd, Esquire, General Counsel, NACDL
Mary Price, Esquire, Families Against Mandatory Minimums
Lyle Yurko, Esquire, Yurko & Owens P.A.
Chair Murphy started the meeting by welcoming members of the Practitioners Advisory Group.
James Felman stated that the PAG would like to discuss three issues with the Commission: acceptance of responsibility, alternatives to incarceration, and drug penalties.
Acceptance of Responsibility
Mr. Felman stated the guilty plea rate is 95.5% and rising. He stated that the issue is not about whether or not there are enough incentives for defendants to plead guilty, thus waiving their fifth amendment right to remain silent and their sixth amendment right to a jury trial, but how quickly they can waive these rights. Mr. Felman stated the idea that there is something wrong with incentives to plead guilty is startling. By way of example, Mr. Felman stated that in the district of Vermont, the number of people who were sentenced after a trial in the year 2000 was three. Mr. Felman stated this illustrates that guilty pleas are occurring at a very significant rate.
Mr. Felman stated that the issue could be that the government is upset because some defendants are waiting to plead guilty until the eve of trial, thereby creating more work for the government. Mr. Felman said that as a defense attorney he is also not pleased by this situation because it also creates more work for him. Thus, he would never encourage a client to wait until the eve of trial before pleading guilty.
Mr. Felman stated that the real issue boils down to what factors might cause a delay in entering a guilty plea. The explanation for the delay is related to when the defense receives discovery information from the government. He stated that it is very inappropriate to advise defendants to plead guilty before receiving all discovery materials and information about the consequences of a guilty plea.
Commissioner Johnson asked whether the government would assert that it was not timely notification of intent to plead when the defendant waits to plead guilty until all discovery materials have been received.
Mr. Felman supposed that if the guilty plea came on the eve of trial because he had just received the information that would allow him to evaluate the guidelines, then the plea would probably be considered untimely.
Vice Chair Sessions stated that one issue concerns the definition of "timely." This particular problem could be resolved by describing timeliness in such a way that delay in entering a guilty plea is not due to fault on the part of the government. Vice Chair Sessions stated that the real issue here is the proposed elimination of subsection (b)(1) as a way to get the third point.
Mr. Felman agreed, stating that the impact of the proposal is that the only way a defendant could get the third point reduction would be to plead guilty early. He added that this raises a constitutional question because without the third prong, there would be a direct link to a waiver of constitutional rights.
Ex-officio Commissioner Elwood asked if there is a waiver of constitutional rights under subsection (b)(1), requiring full disclosure.
Mr. Felman responded that the waiver under subsection (b)(1) is only implicit
because courts have considered this an "either/or" test. That is,
a defendant does not have to waive 5th amendment rights in order to receive
the reduction, but may receive the reduction if he accepts responsibility and
either a guilty plea is entered in a timely fashion or information is timely
provided to the government concerning the defendant’s involvement in the
Ex-Officio Commissioner Elwood asked what poses a constitutional problem in eliminating subsection (b)(1).
Mr. Felman responded by stating that the constitutional problem arises because the sentence would be tied to the decision to waive the 6th amendment right to jury trial more explicitly than ever before. He stated that he believes courts have recognized that if, instead of the phrase ‘acceptance of responsibility,’ the Commission had hinged the reduction solely on pleading guilty, then it might not be constitutional.
Mr. Felman suggested that the Commission consider the procedures underlying the proposed amendment because discovery materials do not always provide sufficient information to make an informed decision about whether to plead guilty. Mr. Felman posited that it would be better if defendants received all relevant materials, including those that are given to the probation officer after entering into a plea agreement, before making the decision of whether to plead guilty. He stated that he does not believe the Federal Rules of Criminal Procedure are rationally linked to the guidelines and this is problematic.
Commissioner O’Neill agreed that the Federal Rules of Criminal Procedure were not really written with the guidelines in mind. He stated that the heart of the problem is that it is one thing to accept responsibility in a timely fashion and another to plead guilty in a timely fashion. Commissioner O’Neill believes the government has a strong argument in asserting that "timely" is not after the defendant has received all discovery material, but shortly after the indictment.
Commissioner O’Neill stated that the difficulty arises with nondiscretionary sentencing hearings where all relevant conduct must be taken into account — that is what ultimately drives the problem. Commissioner O’Neill stated that the current system is a very different system from pre-guidelines where the defendant really could take a shot at accepting responsibility after indictment because the judge fashioned the sentence with complete discretion. Now, however, the prosecutor presents evidence at the sentencing hearing with a preponderance of the evidence standard and the judge must take that information into account. Commissioner O’Neill stated that what PAG was saying made sense, and this points out a fundamental problem with the system — the difficulty in taking into account relevant conduct at the sentencing phase.
Commissioner Johnson asked what the PAG thought about a proposed suggestion to allow a 2 + 2 solution — 2 points for acceptance of responsibility and then 2 points for timely guilty plea.
Mr. Felman stated that the PAG would support such a proposal.
Ex-Officio Commissioner Elwood asked if even more incentive to plead guilty would make it more constitutional.
Mr. Felman responded that the constitutional issue would still exist if, as
long as it is timely, pleading guilty is the only way to get the adjustment.
Vice Chair Steer stated that this approach would exacerbate the constitutional problem, if it exists at all. He added that several years ago the Supreme Court made clear that it is not unconstitutional to grant a benefit for a waiver of constitutional rights. Vice Chair Steer stated that if there is a constitutional problem, then the 2 + 2 concept only serves to exacerbate the issue.
Ex-Officio Commissioner Elwood asked PAG if their real problem was with the Federal Rules of Criminal Procedure.
Mr. Felman stated that he is encouraging the Commission to consider the problems in the interactions of the Guidelines and the Federal Rules of Criminal Procedure in a long term sense. Commissioner Johnson noted that this is a legislative function. Mr. Felman responded that the Commission could play a role in an advisory capacity.
Carmen Hernandez stated that one of the problems is that subsection (b)(2) is being interpreted narrowly by both the courts and the government in some instances. She added that some courts consider motion filing as preparation for trial. Thus, the defense bar is relying on subsection (b)(1). Ms. Hernandez stated that if the Commission eliminates subsection (b)(1), it will be very difficult to get the third point.
Alternatives to Incarceration
In discussing alternatives to incarceration, Mr. Felman stated that 85% of all federal defendants are in prison — this fact is in tension with the statutory directive in 28 U.S.C. § 994(j). Therefore, any proposal to expand sentencing alternatives would be in keeping with the spirit of the statutory directive in 28 U.S.C. § 994(j). Mr. Felman stated PAG prefers Option 1 of the proposal. He said that increasing the judicial flexibility does not necessarily equate with increased leniency. Mr. Felman stated that in Zone A, where straight probation is an option, the defendants are getting straight prison in 40% of the cases.
Vice Chair Steer remarked that this is a phenomenon of immigration cases. Vice Chair Sessions noted that the numbers in Zone A also reflect time served prior to sentencing, such that there may only appear to be a sentence of imprisonment.
Mr. Felman stated that even in Zone B where the court has the option of sentencing the defendant to home detention, in 44% of the cases defendants received prison only sentences, and in 52% of the cases, defendants received some prison time. Mr. Felman stated that in Zone C, where there is a split sentence option, 50% of the defendants received straight prison sentences. Mr. Felman stated that he looked at the Judicial Conference’s 1990 recommendations made to the Commission on consolidating Zones B and C. They said that flexibility is not the same as leniency, and this is just as true today. Mr. Felman quoted the Judicial Conference’s recommendation: "Sentencing options and substitute punishments encourage judges to determine a mix of imprisonment and conditions of supervision that fit the seriousness of the crime and serve other sentencing goals. The judge, working with the probation office, can fashion an individualized sentence and supervision plan involving electronically monitored home confinement, random drug testing, mandatory employment with a portion of earnings going for restitution, and mandatory participation in treatment programs." Mr. Felman stated that every state system of which he is aware experiments more with alternatives to incarceration than does the federal system. Mr. Felman stated that we all know of the devastating consequences when we separate people from their families and livelihood.
Mr. Felman added that there is also the issue of simplicity, stating that Zone C has always been confusing to explain to clients. He stated that the guideline objective of simplicity could be achieved by having three zones rather than four. Mr. Felman stated that the PAG does not believe that combining Zones B and C would implicate racial issues. He stated that data presented by the Judicial Conference in 1990 indicated that this issue is racial and gender neutral.
Mr. Felman stated that the problem with Option 2 is that it would mandate halfway houses and a lot of jurisdictions do not have halfway houses available. He said that this results in sentencing disparity based on resources. He believes it would be preferable to let judges decide the method of punishment within the zone.
Crack/Powder Cocaine Sentencing
In discussing crack/powder cocaine sentencing policy, Barry Boss expressed PAG’s strong support and appreciation for the Commission’s work on this difficult issue. Mr. Boss stated that it can be very disheartening to see young, economically disadvantaged street level dealers receive extremely high sentences. The PAG is especially glad to see a shift from the quantity based system to a system with an emphasis on role in the offense and other specific aggravating and mitigating factors. Mr. Boss stated that from PAG’s perspective, it is very important that the quantity based system and the role factors work in tandem. Quantity must be adjusted in order for the aggravating and mitigating factors to produce just sentences. He asked the Commission to scrutinize carefully anything that would increase any drug sentences. He stated that, based on personal experience, no one thinks that drug sentences that are dictated by quantity are too lenient.
Mr. Boss also stated that PAG supports the use of specific enhancements, adding that a defendant who uses violence in perpetrating a drug offense should be sentenced accordingly. He stated that it is important that the enhancements be defendant specific, thus avoiding vicarious liability principles. Mr. Boss added that mitigating circumstances are equally important.
Mr. Felman stated that PAG is hopeful that if the Commission chooses to add aggravating factors, that it also considers lowering the base offense levels by at least two levels for defendants who do not have aggravating factors. Mr. Felman suggested this would better match the mandatory minimum penalties.
Commissioner O’Neill asked whether PAG had considered whether quantity was a good proxy for harm, as suggested by New York special narcotics prosecutor, Bridget Brennan.
Lyle Yurko responded by stating that the Commission’s data demonstrate that the vast majority of crack dealers are street level dealers; therefore quantity is not a good proxy for harm.
Ms. Hernandez said that Bridget Brennan indicated that in New York penalties are not based on an aggregation of drug quantity. This renders quantity a better approximation for harm, and this is different from the federal system.
Commissioner O’Neill stated that part of the problem is the attribution
of quantity for conspiracies and also the problem with relevant conduct at sentencing.
Ms. Hernandez responded, saying that New York only measures the amount sold
at a particular moment.
Commissioner O’Neill stated this demonstrates that quantity can be a good proxy for harm but only for individual transactions and not conspiracies.
Mr. Boss stated that PAG believes the proposed specific offense characteristic related to prior drug convictions and prior crimes of violence is very imprudent.
Mr. Yurko stated that PAG believes criminal history belongs in Chapter Four. He indicated that there is no other place where prior convictions factor into the offense level, and there is no reason to include it in the drug guideline. He noted that the Commission did not seriously consider including prior economic offenses in the economic crime offense levels. Mr. Yurko stated that because many prior convictions are for drug use and possession this may be a minority issue because of racial profiling, where some defendants are more likely to have prior drug use convictions than others. He supposed that the proposed prior conviction SOC had its genesis in mandatory minimum penalties, but the prosecutor may bargain priors away as part of the plea process. Mr. Yurko stated that this proposed enhancement, however, would apply across the board. He stated that PAG believes it is a bad idea to include prior offenses as an SOC. Further, Mr. Yurko added that the Commission is studying Chapter Four and any changes should not be made until the study has been completed.
Commissioner O’Neill asked whether the PAG would consider counting prior drug convictions under both criminal history and as a specific offense characteristic to be double counting.
Mr. Yurko responded that the PAG would consider this double counting.
Commissioner O’Neill stated that the same sort of argument could be made in terms of the crack/powder ratio; that is, if crack is punished more severely because it is supposedly more harmful, then including other aggravating factors in the sentence would constitute double counting.
Vice Chair Steer asked if it is double counting, then what is wrong with giving an emphasis in both places, if more emphasis is needed.
Mr. Yurko responded by saying the inclusion of prior offenses in the offense level determination is not found anywhere else in the guidelines.
Mr. Felman stated PAG believes that if, after studying Criminal History, the Commission decides that there is a rational basis to give an emphasis in the drug guidelines for prior drug offenses, then this would make sense. But adding this specific offense characteristic now would significantly impact drug defendants, and it has not yet been fully studied. He added that PAG realizes that the Commission is under political constraints but encourages the Commission to consider all elements independently. Mr. Felman remarked that the PAG hopes the Commission does not search for aggravating factors so that the net penalty increases and decreases will balance out. He added that PAG would be remiss if it did not emphasize its appreciation for the Commission’s work on the crack/powder issue and hopes that it will ultimately be successful.
Ms. Hernandez added that criminal history is incorporated into the guidelines because it is supposedly a measure of recidivism and likelihood of future criminality; thus, until the Commission fully studies criminal history and knows whether the measure is accurate, it should not incorporate the proposed specific offense characteristic into the drug guidelines.
Vice Chair Steer stated that he agrees, up to a point. He stated that he does think that the proposed SOC did originate in the scheme provided by Congress, which increases the statutory maximum for defendants with prior similar drug offenses. He stated that this scheme must have related in the collective mind of Congress not just to recidivism, but also to just punishment and culpability. Vice Chair Steer remarked that the Congressional expectation was that the enhancements would apply much more broadly than they actually do; thus, if the Commission incorporated the scheme fully into the guidelines, then perhaps Congress could do away with the mandatory minimums.
Mr. Boss stated that PAG recognizes the Congressional intent, but it is actually something that has worked out well in practice. Vice Chair Steer added that this has worked out because perhaps defendants have gotten a break far more often than they should have. Mr. Boss stated that prosecutors, for the most part, are not interested in giving defendants breaks. He said that when the prosecutor looks at the information and decides not to file a 21 U.S.C. § 851 notice, then there is some discretion that would disappear if the Commission included prior drug offenses as an SOC in the drug guideline.
Mr. Yurko remarked that he hoped Vice Chair Steer was being facetious when
he implied that ten years’ imprisonment for a street level dealer is a
"break." Vice Chair Steer replied that defendants do receive a break
if they have a prior and the prosecutor decides not to file a mandatory minimum
notice, and the defendant gets a lesser sentence than what might have been imposed.
Mr. Felman mentioned that John Butcher, a member of PAG, wrote an article on cultural heritage offenses. While John Butcher was not able to attend the meeting, Mr. Felman would convey his concerns. Mr. Felman stated that PAG was very concerned about the proposal to count as an aggravating factor any unadjudicated noncriminal findings. PAG urged the Commission to proceed very cautiously in relying on noncriminal proceedings because it might set a worrisome precedent. While it may make sense in this particular area, the PAG would prefer that the Commission not give any relevance to noncriminal proceedings.
Vice Chair Sessions stated that the proposal had been changed from a pattern of similar violations to a pattern of misconduct; although PAG might have the same reaction to the revised proposal. Mr. Felman stated that PAG encourages the Commission to move cautiously on this issue because people might not have a right to counsel for noncriminal proceedings and various economic issues are implicated.
Mr. Yurko stated that PAG wanted to commend the Commission for reexamining the crack sentencing issue. He stated that he is a sentencing commissioner in North Carolina and understands how difficult it is to talk rationally about sentencing for controlled substances. He felt that the Commission has taken a very forward and courageous stand on this issue. Mr. Yurko stated that PAG urges the Commission to send recommendations about the mandatory minimum penalties to Congress as well as guideline amendments.
Chair Murphy adjourned the meeting at 1:40 p.m.. She thanked everyone for participating, saying that the Commission appreciated their input and assistance.