Minutes from May 8, 1995

Minutes of the May 8, 1995,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 1:09 p.m. by Chairman Richard P. Conaboy in the Commissioners' Conference Room of the Sentencing Commission. 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
Julie E. Carnes, Commissioner
Michael Goldsmith, Commissioner
Deanell R. Tacha, Commissioner
Jo Ann Harris, 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
Gordon Waldo, Senior Research Advisor
Sharon Henegan, Director, Office of Training and Technical Assistance
Susan Katzenelson, Director, Office of Policy Analysis
Pamela Montgomery, Deputy General Counsel
Win Swenson, Legislative Counsel
Ilene H. Nagel, Dean, Graduate School and Associate Provost of Research, University of Maryland

Stephen J. Schulhofer, Professor, University of Chicago Law School

Chairman Conaboy introduced Kyle Conley, who recently joined the Office of Policy Analysis, Barbara Healy Smith, law clerk to Commissioner Budd, and Federal Public Defender Shari Greenstein from the Eastern District of California, who is on temporary assignment to the Commission. He also introduced John Kramer, Executive Director of the Pennsylvania Sentencing Commission, who is serving the Commission as a consultant on guidelines simplification.

Motion made by Commissioner Budd to adopt the minutes of the April 11-12, 1995, meetings; seconded by Commissioner Tacha. Passed unanimously.

Dean Nagel and Professor Schulhofer presented their study, "Plea Negotiations under the Federal Sentencing Guidelines: An Empirical Examination of the Post-Mistretta Experience." Dean Nagel commenced the presentation by stating that the study was undertaken in response to a legislative directive and the Commission's intent at the time Chapter Six (Sentencing Procedures and Plea Agreements) was written to study the interaction between the plea process and the guidelines. She continued by discussing the methodology and findings. Professor Schulhofer finished the presentation by focusing on problems of the guidelines that surfaced during the study and possible solutions.

Dr. Waldo, updating the Commission on the Drugs and Violence Task Force, stated that the task force held their fifth meeting on May 5 and 6, 1995. He highlighted some of the presentations, including a discussion on (1) the relationship between drugs and violence in the inner city, (2) youth, gangs, drugs, and violence, and (3) research projects of three federal agencies. Dr. Waldo stated that the next scheduled meeting is to plan the final report, which should be submitted by the end of the year.

Sharon Henegan, Susan Katzenelson, and Pamela Montgomery presented an update on the substantial assistance project. Susan Katzenelson commenced the presentation by discussing the outline of the project. She also discussed initial statistical findings. Pamela Montgomery discussed the upcoming telephone surveys of AUSAs regarding a random sample of 250 cases in which the defendant received a 5K1.1 motion. She also highlighted appellate caselaw on substantial assistance. Sharon Henegan discussed the eight district site visits, including how the sites were chosen, personnel interviewed (probation officers, judges, AUSAs, and federal defenders), and preliminary findings.

Win Swenson, updating the Commission on legislative activities, stated that response to the Commission's crack equalization amendment was mixed, ranging from acceptance to confusion to concern. He stated the House Crime Subcommittee will be holding a hearing on crack penalties, although a date has not been set. A discussion ensued over the Commission's concern with the Department of Justice's intent to have legislation introduced overturning the Commission's crack amendment. Specifically, the Commission expressed concern that (1) if the amendment was rejected by Congress, the 100-to-1 quantity ratio would continue to be law, (2) the Department has never taken a position on what the ratio should be, and (3) the unprecedented nature of a member of the Commission taking legislative action related to Commission action. Commissioner Harris reiterated the appropriateness of reexamining the 100-to-1 quantity ratio, but that the Department opposes equalization because, in its judgment, crack is more dangerous than powder cocaine. She stated that Department-sponsored legislation to reverse the Commission's amendment on money laundering is also under consideration.

Chairman Conaboy raised the issue of Commission priorities. Commissioner Tacha had asked that the effort to write guidelines for organizations that committed environmental offenses be lower on the list of priorities given the important emphasis on simplification. No additional priorities were added; however, further discussion was tabled until the next Commission meeting.

Chairman Conaboy announced that the next Commission meeting would be held on June 12, 1995.

Chairman Conaboy adjourned the meeting into executive session at 3:51 p.m.

United States Sentencing Commission