Minutes from July 13, 1995

Minutes of the July 13, 1995,
United States Sentencing Commission
Business Meeting

The meeting was called to order at 2:25 p.m. by Chairman Richard P. Conaboy in the Cabot Room at the Park Plaza Hotel in Boston, Massachusetts. The following commissioners, staff, and guests participated:

Richard P. Conaboy, Chairman
Michael S. Gelacak, 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
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Lou Reedt, Senior Research Associate
Win Swenson, Deputy General Counsel
Fred Bennett, Representative, Practitioners' Advisory Group
Fran Bowman, Representative, Probation Officers' Advisory Group
Scott Gilbert, Representative, Federal Judicial Center
Cathy Goodwin, Representative, Administrative Office of the U.S. Courts
Mary Frances Harkenrider, Representative, DOJ, Criminal Division
Maggie Jensen, Representative, Probation and Pretrial Division
John Kramer, Guideline Simplification Consultant
Dr. Peter H. Rossi, University of Massachusetts at Amherst

Vice Chairman A. David Mazzone and Staff Director Newton were unable to attend the meeting.

Motion made by Commissioner Tacha to approve the minutes of the May 8, 1995, meeting; seconded by Commissioner Budd. Passed unanimously.

Dr. Peter Rossi presented an overview of the just punishment study that he and Dr. Richard Berk recently submitted in draft form to the Commission. He reported that the main purpose of the study, conducted early in 1994 through face-to-face interviews with a probability sample of the American populace, was to find out how the American public would sentence persons convicted of crimes under the Federal Criminal Code. He reported that the general conclusions of the study were: (i) most of the variation in sentences given was a function of the crimes committed, not the background of the defendant; (ii) little support for sentences consistent with most habitual offender legislation; (iii) sentence length did not increase at the same rate as the economic gains from crime; and (iv) the impact of variation in characteristics of the crime and the defendant on sentences seems to have been multiplicative. He stated that of particular interest to the Commission was that respondents did not treat trafficking in heroin, powder cocaine, or crack cocaine very differently, yet marijuana trafficking was sanctioned much less severely. Chairman Conaboy thanked Dr. Rossi for his presentation.

5G1.3 Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment

Chairman Conaboy announced that the Commission would not take any action today with regard to 5G1.3, but would continue studying all related matters and take action at the September meeting. Commissioner Tacha requested that Scott Gilbert, Cathy Goodwin, and Maggie Jensen work with Commission staff on the questions of (1) on page 4 of the June 29, 1995, draft memorandum, retaining paragraph one and deleting the rest, and (2) having some middle ground between consecutive and concurrent sentencing.

General Counsel Steer, citing the Commission's statutory authority (28 U.S.C. 994(u)) to determine retroactive application of Commission amendments, stated that traditionally the Commission considers the purpose of the amendment, the magnitude of the change in the guideline range made by the amendment, and the relative ease or difficulty in applying the amendment retroactively. He then briefly described the eight amendments under Commission consideration for retroactive application. Commissioner Tacha requested, in regards to amendments 8 (Marijuana, 2D1.1) and 9 (Drugs, 2D1.1), respectively, that staff review presentence reports to determine whether they indicate the number of plants and pills. In regard to amendment 505 (Drug Quantity Table), she requested the number of affected crack cocaine defendants.

Deputy Staff Director Martin, reporting on the process involved with the simplification project, outlined internal and external resources available to the Commission as it undertakes this task. He stated that the group will prepare papers on a multitude of issues involved in the simplification issue including, for the September meeting, papers on the Sentencing Reform Act and relevant conduct. John Kramer stated that the project was on a two-year cycle, with the first phase relating to issue papers on major guideline topics to be completed by December 1995. He stated that the next three phases involved developing and refining a range of options for Commission consideration, regional hearings, publication of proposals in the Federal Register, Commission deliberations, and submission to Congress.

Deputy General Counsel Swenson, reporting on the Commission's upcoming "Corporate Crime in America" symposium, stated that the agenda is set and the research results are starting to come in and are on track. He stated that the symposium was approaching the halfway mark for capacity and that the distribution between prospective attendees was nicely spread, with the largest components being inhouse corporate employees from industries such as manufacturing, consumer products, insurance, telecommunications, and publishing. Mr. Swenson reported that the lead article of BNA's primary newsletter on compliance discussed the symposium and that the Wall Street Journal was planning an article for next week focusing on the guidelines and the symposium.

Deputy Staff Director Martin, reporting on the June 13-14 senior staff planning retreat, stated that the discussions focused on allocations of resources in light of Chairman Conaboy's priorities memorandum of April 26, 1995, the Chairman's Four-Point Plan, Commissioner Goldsmith's Guideline Reform/Future Staff Project memorandum dated June 13, 1995, and Commissioner Gelacak's issue of compassionate release for aging offenders. He stated that as a result of the retreat, office directors were writing operational plans by evaluating and re-prioritizing their projects. Commissioner Tacha expressed concern over the possibility of eliminating the appeals database.

Deputy Staff Director Martin reported that the Commission has issued another edition of Guide Lines and is now on-line to an electronic bulletin board. He reported that Chief Judge R.Thomas Brett (N.D. Oka.) sent the Commission an antidrug abuse video tape produced by a defendant that he had sentenced. Mr. Martin announced that the next FJC Mega-Judges' meeting would be held in Seattle on September 1 and the National Association of Sentencing Commissions would meet in Boston on July 27.

Commissioner Carnes, on behalf of the Commission and in anticipation of Commissioner Harris's departure, stated that it had been a pleasure working with her and praised her integrity and well-balanced perspective that she brought to the table.


Chairman Conaboy adjourned the meeting at 4:24 p.m.

United States Sentencing Commission: