Transcript from June 17, 1998

UNITED STATES SENTENCING COMMISSION

PUBLIC HEARING
WEDNESDAY,
JUNE 17, 1998

The Commission met in Suite 2-500 South in the Thurgood Marshall Building, One Columbus Circle, N.E., Washington, D.C. at 9:30 a.m., the Honorable Richard P. Conaboy, presiding.

PRESENT:

The Honorable Richard P. ConaboyChairman
Michael S. Gelacak Vice Chairman
Michael Goldsmith Commissioner
Deanell R. Tacha Commissioner
Mary Frances Harkenrider Ex-Officio
John H. Kramer Staff Director

ORDER OF EVENTS

Welcome and Introduction of Commissioners

Opening Statement, Judge Richard P. Conaboy

Testimony:

Kyle O'Dowd, Families Against Mandatory Minimums

Fred Bennett, Practitioners Advisory Group

Adjournment

P-R-O-C-E-E-D-I-N-G-S

9:34 a.m.

DR. KRAMER: Good morning, thank you all for coming this morning. In keeping with the Commission's attempt to get input from others about our agenda, we are holding this public hearing. We have four people who have submitted comments to us and we have two that are going to appear before us to testify.

Getting started, let me introduce the Commissioners, Commissioner Deanell Tacha to my immediate left. To my far right, Commissioner Mary Harkenrider, next to her left is Commissioner Michael Goldsmith, our Vice Chair Commissioner Michael Gelacak and the Chairman, Commissioner Richard P. Conaboy.

Mr. Conaboy, it's all yours.

CHAIRMAN CONABOY: Thank you, John. We welcome all of you here this morning to this public hearing that's been scheduled to discuss next year's agenda. And we certainly welcome the input from those of you who have submitted matters, and particularly those people who are here to testify.

It's important for us to hear from the public and from groups like those you represent as to the items that it would be important for us to consider during the course of this year as we continue to try to make the sentencing process in the federal courts a fair and effective process.

And we, I'm sure you know that it's impossible for us to address every single issue that's brought to our attention, but as I say repeatedly among our Commission members and to people like yourselves, an open discussion is the beginning of understanding what people are concerned about. And we need to continue the dialogue to make sure that we are aware of issues that are important to those people who are working in the courts around the country and the federal system and engage in this process of trying to react to conduct that violates the norms of our society.

In the course of this year, we indicated in our advertisements that the Commission was going to continue to work on the revision of the fraud and theft and tax guidelines that we worked on to such an extent last year, and that we would potentially begin a review and assessment of the criminal history guidelines that we've talked about over and over again. And that we would review and develop some assessment of sentences and guidelines that have to do with homicide.

And of course, as always, we have to be concerned with much legislation that has passed or is in the process of being passed that has to do with the punishment and sentencing and in many instances requires us to make changes or amendments or additions to the guidelines to follow through on the actions of Congress in declaring conduct as a criminal act or in directing us to review the punishment for certain conduct or to increase it.

And we have a number of those acts that have already been passed and there are others under consideration in Congress that we continue to monitor and will be working on during this year.

So we, while we seek in our advertisement indicate that we were seeking comment on certain issues, we welcome comment on any issues that you feel are important and that you would like to bring to our attention.

I want you to know that in spite of the fact that we are short of commissioners and there is great concern about filling the vacancies, and more vacancies will be coming into existence, I've talked yesterday with the office heads here and the Commission, and we will be talking later today with the entire staff here to make sure that we continue to keep the work of this Commission going no matter -- the Commission itself and the work we do is bigger than any or all of us put together. And that we are continuing here to see that the work of this Agency is not interrupted in spite of vacancies or changes in some of our areas.

This morning there are two people here. One representing the Families Against Mandatory Minimums and the other the Practitioners Advisory Group. I appreciate the fact that both of you are here, not only representing your own groups but making comments to us. And we welcome you here and we will be glad to listen to your comments this morning. As I repeat that we also welcome a number of others who have submitted, who have made written submissions to us on items that are of concern to them.

So, initially we will hear from Kyle O'Dowd who is here this morning representing the Families Against Mandatory Minimums. Mr. O'Dowd, you can proceed.

MR. O'DOWD: Mr. Chairman and distinguished members of the Sentencing Commission, thank you for this opportunity to the Commission on future policy development priorities. I'm not the first to urge the Commission to re-examine the issue of drug sentencing. In fact, I run the risk of sounding like a broken record.

Quantity based drug sentences have been the primary targets of criticism hurled at federal sentencing. As I'm sure the Commission is aware, federal drug sentences provoked judicial ambivalence, academic criticism and indignation by members of the press.

Pointing out the source of these excessive sentences requires both hands. One directed at mandatory minimum statutes and one fingering the Sentencing Guidelines.

While critics derived pre-guidelines practice as law without order, the drug guidelines offer order without reason. The tenuous link between drug quantity and culpability means that the media has not been left wanting for horror stories.

The story of Kemba Smith appearing in Emerge magazine caught the attention of one high school class in Dayton, Ohio. On their own initiative, 50 students from Colonel White High raised money for a bus trip to Washington in order to protest a sentence prescribed by the Sentencing Guidelines. The students were shocked by the 24 1/2 year sentence imposed on this young, first-time offender. This event is a poignant reminder that excessive punishment erodes public confidence in the Sentencing Guidelines.

One could almost say the federal sentencing is drug sentencing and that federal prisons are drug prisons. Drug offenses generally comprise more than 40 percent of guideline sentencings. Nearly 60 percent of those occupying federal prison space are drug offenders.

COMMISSIONER GOLDSMITH: Mr. O'Dowd?

MR. O'DOWD: Yes?

COMMISSIONER GOLDSMITH: Do you mind a question before we leave the point? Your concern about Ms. Smith's case, if you could just take a moment to depart from your notes and tell us to what extent her sentence was driven by guideline considerations and to what extent it was dictated by mandatory minimums or statutory considerations.

MR. O'DOWD: It is my understanding that she was held accountable for a quantity well above the mandatory minimum 10 year level. She did not have a prior, so it did not trigger recidivist mandatory minimums, and therefore it was entirely a guideline-based sentence. If there is such a thing as a guideline-based sentence.

COMMISSIONER GOLDSMITH: Are you saying -- drug conduct rules --

MR. O'DOWD: Correct. She was held accountable for the entire quantity of crack cocaine distributed by the drug conspiracy. But there were also money laundering charges in that, but I believe they were far outweighed by the drug quantity.

COMMISSIONER GOLDSMITH: Okay.

MR. O'DOWD: In light of the sheer volume of federal drug cases, the drug guidelines should always be a priority. But parity is not the only reason to remove drug sentencing from the back burner. There is a respectable body of opinion that the drug guidelines are generally greater than necessary to satisfy the purposes of sentencing.

By some measures, it appears that drug trafficking guidelines have not even fulfilled the promise of reducing disparity. Regional differences may have increased under the Guidelines and drug sentences account for a disproportionate percentage of total departures.

These are symptoms of a crude and over simplified guideline that has utterly failed to reflect advancements in knowledge of human behavior as it relates to the criminal justice process.

Despite minor reforms, mandatory minimums are still the hobgoblin of the Guidelines. The prolonged confinement of non-violent drug offenders for decades or natural life does not reflect the expertise of this Commission. These sentences are the result of ill considered consistencies with the mandatory minimum penalties.

Subservience to the mandatory minimum statutes, if it's required at all, does not necessitate extrapolation of sentences above the ten year mandatory minimum.

Some experts have argued that interpolation below this level is also unwarranted. Remember that the Sentencing Reform Act did not require the Guidelines to be quantity based. And Congress has never required that the guidelines reference the mandatory minimums.

Aside from a necessary deference to Congress, the first commissioners apparently incorporated the mandatory minimums to create a smooth continuum and avoid sentencing cliffs. Whether passage of the safety valve calls for a different approach is a question worth considering.

In a recent year, the safety valve released judged from the mandatory minimum in 17 percent of the drug cases. Justice Breyer has said in Guideline writing, the best is the enemy of the good. But with respect to the drug guidelines, the Commission has settled for something miserably inadequate. The question that has not received enough attention is how to fix it.

FAMM urges the Commission to study the full range of alternatives, from Michael Tonry's suggestion of complete independence from the mandatory minimum statutes to Steven Schulhofer's recommendation that the drug quantity table be capped at the ten year mandatory minimum level, which is Level 32.

Amendments that would encourage greater reliance on offender characteristics such as Roll or departures should also be explored. Such policy analysis promotes discourse, help educate legislators and may lead to workable and politically viable solutions to the Guidelines' most notorious flaw.

The Guideline writing process is supposed to be evolutionary. But so far the evolution of the drug sentencing guidelines has been blocked. Despite past political frustrations, only through research and analysis today will the Commission be poised to take advantage of future opportunities for reform. Thank you.

CHAIRMAN CONABOY: Thank you, Mr. O'Dowd. You list in your written submission some suggestions about reform, as you call it. Would you want to comment on any -- I know you made very quick reference there to some of the suggestions that have been made. But are there any other suggestions that you want to elaborate on a little bit more?

MR. O'DOWD: The three primary suggestions, and one of them I note has been added to the Federal Defender's Suggestions, that is a window or a window of 30 days in which to determine drug quantity, total drug quantity.

The other two suggestions, one Michael Tonry's completely decoupling the guideline from the mandatory minimums. Stephen Schulhofer, it's my understanding, believes that that does not pay adequate deference to Congress' determinations that certain quantities trigger a certain sentence. Professor Schulhofer would merely cut off the drug quantities at the ten year minimum level, and leave the interpolation that exists below that level.

And therefore sentences would group around the ten year level for quantities above and beyond that quantity, triggering the ten year level. And the differences in culpability and in terms of possession of a gun, use of the gun, role would be reflected and in many cases cause the sentence, draw the sentence up into the upper ranges of the Guidelines and better account for differences in culpability.

FAMM has suggested Mr. Schulhofer's recommendation in the past two amendment cycles.

CHAIRMAN CONABOY: Does anyone else have anything?

COMMISSIONER GOLDSMITH: Judge? I just wanted to thank you for your testimony today and ask that you pass on the Commission's regards to Julie Stewart who testified last year. I recall her testimony in which she, in her typical low key way, said that the Commission had been so misdirected and in many regards impotent that she viewed us as being in danger of becoming extinct, or characterized us as soon to be an endangered species.

And I might want, might add that if you take a look at the June issue of the American Lawyer magazine, there is a paragraph or two about the Commission and it characterized the Commission by virtue of the vacancies as an endangered species and soon likely to be extinct. So, Ms. Stewart may have been quite prescient in her observations during her testimony last March, March of 1997.

MR. O'DOWD: Hopefully that won't be the case.

COMMISSIONER GOLDSMITH: Hopefully not.

CHAIRMAN CONABOY: Anyone else? Questions or any comments? [No response.] All right, Mr. O'Dowd. Thank you very much and this is an area of course that concerns all of us and troubles all of us, the whole area of drugs and what to do. And I'm sure you know that there are those who still feel punishment is not severe enough and we run into that on many occasions and yet with all the assets we have in this country we are struggling, not only us but others in government and out of government to find as an answer to the drug problem and a way to handle it.

So we appreciate your coming here and reminding us of these things and helping us try to think this thing through. Yes?

COMMISSION GELACAK: Just one thing before you leave. Does your organization keep track, do you keep a list of a compilation of particularly outrageous cases?

MR. O'DOWD: Yes we do and we are frequently called on by the media to provide them with examples of excessive mandatory minimum sentences and as the case has been recently and excessive sentences under the Sentencing Guidelines as well.

COMMISSION GELACAK: Do you know of any reason why you or your organization would object to providing us with that information?

MR. O'DOWD: Absolutely not. I'm certain that Ms. Steward would be --

COMMISSION GELACAK: If not, I would like you to do that.

MR. O'DOWD: -- pleased to compile.

CHAIRMAN CONABOY: It is important and we ask a number of people to do that anytime there is a case or several cases that involve what people think is a very unusual result from using the Guidelines. It's helpful for us to hear. So that would be helpful if we had a list of some of those that you say your organization keeps.

MR. O'DOWD: I included two examples in my written submission of excessive guideline sentences that have attracted media attention, in particular.

COMMISSION GELACAK: I am sure there are quite a few.

MR. O'DOWD: There is quite a few that haven't made it into the papers, yes.

CHAIRMAN CONABOY: All right, thank you Mr. O'Dowd. Our next presenter is no stranger to this room or this Commission and an attorney friend that has long been an active member of the Practitioners' Advisory Group and we are happy to have you here this morning and you can proceed Mr. Bennett.

MR. BENNETT: Thank you, Judge. Members of the Commission, I submitted a two page letter on May 29th but I am going to be in my remarks going far beyond that for a simple reason. I spoke to Mr. Courlander after that. I indicated to him that we would be having a meeting of the Practitioners' Advisory Group the morning of the public hearing. And that because our members are spread throughout the country and frequently participate by telephonic conference, that we would probably be adding numerous additional items so to speak to the areas that we thought should be priority areas for the Commission.

So I hope you have paper and pencil so to speak. Some of them are repeated by both the Probation Office Group, POAG, and by the Federal and Community Defenders, so it won't be hitting you out of left field so to speak.

The area that was covered in the letter that we do think needs to be a high priority, and the fact is our number one wish list, so to speak, on priority items is continuing the study and bringing back for votes, formal votes, during the next amendment cycle on money laundering. We think this is a critical area. You've done studies on it.

Of course, you are all familiar with what went up to the Hill and as part of an amendment package a few years ago and was rejected. But we think that the problem areas on these Guidelines, the S- Guidelines, 2S1, 2S1:2, 2S1:3 are well documented and should be a high priority, along with the economic crime package which we know is a carryover from this amendment cycle. So that is covered in our May 29, 1998 letter.

Now in addition to that, we have the following: substantial assistance. This is covered generally in the Federal Defenders' Position Paper on page three, it's the second item up from the bottom. We concur and in fact, feel very strongly that the Commission should consider an amendment in the area of revising the current provision to include a guideline that would permit a departure without a government motion in non-statutory mandatory minimum cases.

That is, where the sentencing judge could depart downward without a motion from the government on the defense motion, or so to speak sua sponte by the court in the non-statutory mandatory minimum cases.

Our third area is in the standard of proof. And this is basically two-fold. We are very concerned, and it's been addressed by the Supreme Court but so to speak not reached a final decision, and it's not the basis of a holding. It comes up in two areas. One area has two subparts and the other is by itself. And that is acquitted conduct which is mentioned by the Defenders on page two, their first comment, relevant conduct would be 1.3, a revision to possibly preclude consideration of acquitted conduct.

I put it under standard of proof. A, should a sentencing court be allowed to consider at all acquitted conduct? B deals with two areas. The first deal with when you have charge conduct, what should the standard of proof be? You have in 6A1.3 the Commission already has in its commentary a discussion that the use of the preponderance standard, which is the standard of proof at sentencing, does meet due process and policy concerns, citing an old Second Circuit case, Fatico which is really a bail hearing case.

I'm concerned and I want to raise it in terms of just a common example of how this comes up. It comes up in charge conduct really in three areas. In drug cases, in gun cases and the other one that's the most noticeable to me is in the area of the aliens, unlawfully entering after deportation. The 16- level enhancement.

But the most common two with the highest numbers would be in the drug area and in the gun areas. And I'm talking about the enhancement/cross reference to the murder guideline.

I came back less than two weeks ago, and Judge I'm going to talk about it because this is not going to be an issue on appeal. It is a Tenth Circuit case. The case is United States vs. Fortier. Michael Fortier. He plead the gun counts and failure to report -- and failure to report the offense. And lying to an FBI agent. But the gun count is what drove the Guideline.

The gun count was based on his trip to Kansas with Mr. McVeigh, bringing guns back to Kingman, Arizona, selling guns at a gun show. And according to the probation officer's report which drove the cross reference enhancement, the possible use of the proceeds from the sale of guns in the Oklahoma City bombing venture.

He would have been without this Guideline cross reference and enhancement at a 17, which is a time served sentence. It means out the door at sentencing. Walking, free man.

The probation officer applied on a preponderance of the evidence standard, the murder cross reference enhancement which drove it up to a 43 which was adopted by the Court.

The specific statement at sentencing: I find by the preponderance of the evidence that the gun -- this was even an extension of the Smith case that is, that the gun was not used in the felony but the proceeds from the sale of guns were used potentially in the Oklahoma City bombing. On a preponderance of the evidence standard which gave him an offense 43 level which was eventually, if you read the final outcome in the case, based on a downward departure motion by the government, he finally ended up with 12 years.

And the 12 years to many people would say, well 12 years, the man caught a significant break. But what everybody is missing from it if this murder cross reference did not apply it was a time served sentence.

Your finding in the drug area increases to 43 on a preponderance of the evidence standard, more trouble even than the gun area. I think there are 67 or actually 75 reported cases applying the cross reference enhancement to the murder guideline, jumping it up from a 36 to a 43, sometimes even below a 36 to a 43, adding years in maybe 30 or 40 percent higher sentence.

In the Fortier case, more than quadrupling the sentence on a preponderance of the evidence standard. So that's the first problem area.

The second subcategory, I think is even more dangerous. And that is relevant conduct coming back at sentencing not charged in the indictment. That say taking the Fortier case but not even having a gun count in the indictment, but then giving him a murder cross reference and gun count, gun conduct sentencing.

This happens across the country on a regular basis. A form of hiding the ball so to speak. We will not charge it with a standard of proof either on a bench trial or a jury trial would be beyond a reasonable doubt, but we will in fact raise it at sentencing on a preponderance of the evidence standard.

So I'm suggesting to the Commission both in light of charged conduct and in light of uncharged conduct, this whole area needs revisiting. Standard of proof. Expressly left open in Watts, in the Watts case by the Supreme Court. But it is, and in fact it's been even discussed at oral argument in other cases, I think even troubling to some of the justices, I won't say a majority, but some of the justices of the Supreme Court.

So I think standard of proof in the area of acquitted conduct and relevant conduct generally should be on the Commission's plate, and it's one of our highest priorities.

COMMISSION GELACAK: What is your solution?

MR. BENNETT: Solution potentially could be in two areas. You could in fact, I think, on the acquitted conduct bite the bullet that you have been unwilling to do in the past, and pass a guideline that prohibits sentencing on acquitted conduct.

On the other you could perhaps draw a guideline or a policy statement saying that if in fact adopting the language of Kikumura out of the Third Circuit, if in fact the sentence wags the dog, or wags the tail, excuse me, that if there is going to be set a limit, a 30 percent increase or greater in a sentence for enhancements or cross references, the standard of proof recommended by the Commission, you could do it right in 6A1. Replace the language in 6A1, standard -- or add to 6A1 that the preponderance evidence standard applies for two, four or minor enhancements.

For major enhancements or cross references that would increase the sentence in excess, you put whatever number you want in. Thirty percent, 25 percent, Commission recommends a standard of proof by clear and convincing evidence. Or beyond a reasonable doubt.

I don't think that it raises Constitutional concerns in terms of the Commission's ability to act.

CHAIRMAN CONABOY: Wouldn't that fractured way of doing things though possibly raise more concerns? In other words, if you are only going to send me to jail for a short period of time, you can do it by a lower standard of proof.

MR. BENNETT: Well we have that in the civil area. For instance we have that in the civil area.

CHAIRMAN CONABOY: I realize we have that in the civil area, but what I'm talking about is deprivation of freedom. Which is much different than a civil balance of power. It seems to me --

MR. BENNETT: That's true but it's better than a system in which for both high end and low end, it's the same standard. I mean --

CHAIRMAN CONABOY: I'm sympathetic with your concern on the standard of proof and there has been, I think Judge Becker has written an article on this business of standard of proof and relevant conduct and matters which drive the sentence. I'm just chatting with you on the fracturing the standard.

MR. BENNETT: Yes, it raises conceptual policy concerns, is it right if a man or a woman is only going to get a six or four level enhancement, can we do that by a preponderance, but if it's eight, by clear and convincing? The problem is, that's exactly why I think we need a study and perhaps some proposals. How can we do this in a way that would be both fair but would also not in fact increase sentencing hearings or difficulties at sentencing hearing in every case across the board.

MR. YURKO: The solution is to have a clear and convincing standard across the board.

MR. BENNETT: Yes, that's another approach, as a compromise between beyond a reasonable doubt and preponderance. Especially on the basis that you are in a Guideline driven basis or Guideline system now and not a discretionary system so it's, it should be a higher standard of proof than before.

The next area is role in the offense. And we are talking about the proposal of the Federal Community Defenders at the top of page three. Whether or not the offense levels of minimal or minor participants should be capped based on the type of drug involved. And also whether or not the Commission might want to consider raising the minimal role both up and down from four to either five or perhaps six. We raise this and in fact Jim Feldman who was on the telephone today made a big point of this. And we think this logic is impeccable in this area.

The Guidelines in three areas are quantity driven. Drugs, economic crimes and money laundering. As a way to get around the total driving of the Guidelines by quantity, if there is more flexibility in the area of the role of the offender, such as an aider or an abetter or an accessory, or co-conspirator, but not a dominant player such as a higher reduction, five or six, you can temper, so to speak, justice with mercy in terms of the sentencing at the high end. And that you can do it in both respects.

For the super persons that have the most significant role, if you are going to have a minus five or a minus six, you could have a plus five or a plus six. So we are not suggesting that you just lower it for those that are less involved for those that are greater involved, the kingpin so to speak, you could have the plus number.

The next area is an umbrella that covers two or three things mentioned by the Federal Defenders. I put it under the umbrella of greater uses of alternatives to incarceration. We are concerned, since we know the main area, one of your main areas is going to be your economic crime package, the fraud, theft and tax guidelines, that the Commission heed and take into account and the new Commissioners, 28 U.S. Code 994J, and that is the admonition from Congress that on non-violent crimes as much as possible, that alternatives to incarceration be explored.

The Defenders have address that in their area on Chapter 5, Zones A, B and C expanded to encourage courts to impose sentences of probations where there are relatively short jail terms. That's one way. Imposition of terms of probation for non-incarcerated sentence and alternatives to confinement, community service. In other words, opening up the window of use of alternatives to incarceration in non-violent crimes.

COMMISSIONER HARKENRIDER: Fred, can I stop you there and just ask you, are you suggesting increasing where the zones are? Is that what you are suggesting?

MR. BENNETT: Yeah, a little bit.

COMMISSIONER HARKENRIDER: One of the questions I have in this area, and just don't understand, is looking at -- I was just looking, and I may have these numbers wrong, but I don't think so. Looking at where the judges sentence within the zones, and even in Zone A where the judges could give straight probation, 30 percent of them give imprisonment.

So, I'm wondering if the problem in terms of alternatives to incarceration really isn't something different than the zones not being sufficient. If it isn't something either in terms of training of the judges as to what's available, it goes up in Zone B, and clearly in Zone C too. But if it's really not something else that's driving this. And I'm wondering what your thoughts are.

MR. BENNETT: I think it's a combination of the two. I think we have the same point that was made earlier in the debate in this amendment cycle on the need for increased sentences in the fraud, tax and theft area because the judges weren't sentencing at the top end of the guidelines, even in the areas that they were complaining about.

So I think your point is well taken, that the judges --

COMMISSIONER HARKENRIDER: I mean, I don't know why the judges are doing what they are doing, and I'm wondering, I mean, I'm not sure they need more, that you need to change where the zones are. It seems to me you've got to figure out why they are not using the zones.

MR. BENNETT: I --

COMMISSIONER HARKENRIDER: How the zones are being used.

MR. BENNETT: I think it's a combination. I mean, I agree that you can find a number of cases where the judges have a full range of probation, straight probation available to them and they are not using it. On the other hand, the point that I'm making, which I don't think is inconsistent with what you are saying, that there are judges that would like to give straight probation for a less sentence, who feel that their hands are tied by the zones. So I think it's a combination of the two.

MR. YURKO: And remember it says the Commission shall ensure that the Guidelines reflect the general appropriateness of imposing a sentence other than a prison sentence when you talk about the fact.

MR. BENNETT: Our next area is revising the sentence of responsibility. We see that this has been the echo and feel of the major concern that we have. We discussed it by telephone this morning. The question of whether or not there should be -- the Guidelines be more explicit, automatic reduction for a guilty plea.

It raises the question, we think it should be on the table, but it does raise the question whether or not in fact if a defendant enters a plea of guilty before trial, should he at least get, he or she, an automatic two or three points? And that would perhaps entail then raising it say, in conjunction with that, whether or not it should be an automatic three and then raising for other forms of acceptance such as super timely acceptance, or acceptance with assistance but not enough assistance to get the 5K motion, whether you might have a four point.

But whether or not at a minimum on a guilty plea, in terms of conservation of resources and court time, there should be an automatic three level if it's above a 16, an automatic two levels if it's below a 16.

It certainly would also, if that was the move made by the Commission, decrease litigation in that area. There is, as you know, a fair number of cases litigated on whether or not the court has made a correct finding in terms of declining to give either the third point or declining to give acceptance at all.

Just two more areas. The next area is grounds for departure 5K2. This is found at the reference at the bottom of page three and the top of page four of the Defenders. And I think was broached earlier, and in fact, if I'm not mistaken, Judge Conaboy, was something that I think that you at least tentatively spoke orally on at one of the meetings.

Top of page four, an amendment that would have the following language: "After determining the applicable guideline range, the sentencing court has the responsibility to consider when determining the appropriate sentence whether there are case-specific circumstances that may warrant a departure."

We would like to see that. We don't think that the mere reference by the Commission to the Koon's case and the Koon's language is the be all and end all and that this in fact would make it available to a sentencing court to say I find under the circumstances of this case a combination of case-specific circumstances in this case that a departure of two levels is warranted.

COMMISSIONER TACHA: How is that different from what Koon's says? Which says prohibited and encourage factors in between it's up to the Judge.

MR. BENNETT: It is not explicitly different than Koon's except that we do not have, this would put it in the Guidelines and bring it -- the way it is now --

COMMISSIONER TACHA: Almost every circuit by now has an opinion that says roughly that.

MR. BENNETT: Then the defendant could also cite a Guideline reference. In addition to the Supreme Court we have the Sentencing Commission weighing in with a specific guideline in this area. And look I know that a lot of you think that out there every judge in the United States at the District Court level, not every, but a number of judges do not like the Commission. Do not like the work of the Commission.

But there are a number of judges out there that in fact very strongly believe in the Sentencing Guidelines one, and two, the work of the Commission. And so to the extent that we got this Guideline, we think it would help.

And the last area is --

COMMISSIONER GOLDSMITH: I just want to point out a law review article written by Judge Stuart Dalzell of the Eastern District of Pennsylvania which he characterizes -- I guess the title of the article was One Cheer for the Guidelines. Suggesting that there was at least one judge -- I looked and couldn't find another article that says another cheer or two cheers for the Guidelines. But at least Dalzell, One Cheer for the Guidelines.

MR. BENNETT: When did that come out? Was that recent?

COMMISSIONER GOLDSMITH: About two years ago in the Villanova Law Review. I looked for an article entitled How I Learned to Love the Sentencing Commission. But --

[Laughter, several people talking at once.]

MR. BENNETT: The last area, it raises the question of how as a practical matter the Commission could do this. I suppose the only way you could do it would be in a commentary.

CHAIRMAN CONABOY: How we could do what?

MR. BENNETT: Well I'm going to talk about it right now and I'll tell you.

CHAIRMAN CONABOY: Oh, okay.

MR. BENNETT: It's the next area.

CHAIRMAN CONABOY: I thought maybe I missed something.

MR. BENNETT: No.

[Laughter, several people talking at once.]

CHAIRMAN CONABOY: That would seem to be appended to it.

[Laughter.]

MR. BENNETT: And this deals with is very troubling to the defense bar and defendants, waiver of appellate rights. We are finding now in an increasing number of districts around the country that are demanding, and it is strongest in non-defender areas, follow me, non-public, non-federal defender areas where they feel that they can roll over the panel attorneys with impunity, so to speak. Requiring a defendant that pleads guilty to sign language in a plea agreement, or in effect not plead, waiving his right of appeal.

Now we are seeing, which is even more odious and offensive, not only waiving your right to appeal, but in effect waiving your right to file a 2255 motion to vacate sentence and including, which is the coup de grace so to speak, language in the plea agreement that the attorney has been effective. And in effect almost waiving any Strickland vs. Washington challenge to ineffective assistance of counsel.

This should be discouraged by the Commission for a number of reasons. First of all, any defendant should have the right to look at his case anew for purposes of the 2255, especially in the area of ineffective assistance of trial counsel. I need only cite a case out of the Third Circuit, U.S. vs. Day which is the 2255 area remanded for a new hearing on the basis that the attorney handling the case was totally unfamiliar with the Sentencing Guidelines. Even though he passed a plea agreement on to the defendant, failed to tell the defendant what would happen under the Sentencing Guidelines, i.e., career offender, he would be a career offender if he didn't plead guilty.

We should not be -- the Commission should discourage the practice of the Department of Justice seeking waiver of appellate rights in any area. For another reason, it's going to hurt, cut back on your data, your information. The fewer number of appeals gives you fewer cases for your data bank in all of these areas.

COMMISSIONER TACHA: Fred, let me just ask you a question about that area. I haven't seen one of these plea agreements that waives the Strickland standard, but even if we agreed with you, why does that question fall within the purview of our jurisdiction?

MR. BENNETT: Well you have a section in connection -- the whole 6A section in terms of standard of proof, sentencing process, recommending -- I think there is a section in there recommending you don't hide the ball on conduct and recommending fair play on plea agreements. You could put it right in that section where -- does anybody have the appropriate language?

COMMISSIONER TACHA: We could, but the question is how would -- we could, of course, we could. But the question is how does that help at all because that's going to be a Constitutional interpretation in any case --

MR. BENNETT: The Strickland would.

COMMISSIONER TACHA: That's the piece of it --

MR. BENNETT: I don't think you should address that separately. And I didn't mean to say that this language is -- there is nothing in the plea agreement that per se waives Strickland. I'm saying, it's a statement to the effect the defendant acknowledges and agrees that he has been well served by his defense attorney. That's the thrust of it.

COMMISSIONER TACHA: But in any case, that's going to get litigated, whatever we say.

MR. BENNETT: Right, that's true. But you have, you do have current language in there that I think was passed three or four years ago at the request of the Defense Bar. In the area recommending full and honest disclosure on plea bargaining between the Defense Bar and the government. I think you can put it in the section there that the Commission discourages the seeking of waiver of appellate rights.

COMMISSIONER HARKENRIDER: Well, Fred do you really want that? Basically, I sit on the Criminal Rules Committee as well and I've heard Tom Hillier talk about this and a number of other defenders who agree that the limited waivers which to my understanding are more prevalent where, for example, the defendant and the government agree say to a very difficult fraud calculation or something, and then there is a waiver of the right to appeal the fraud loss. Or something of that sort, many defenders I think are very much in favor of those types of waivers.

MR. BENNETT: Because it so to speak shields from appeal the right of the government to take something up if they get a bad finding?

COMMISSIONER HARKENRIDER: Some of them do and some of them don't. But I guess what I'm saying is that these things come in all sorts of shapes and forms. I have never seen the one you are referring to and would love it if you could pass that on to me.

MR. BENNETT: Somebody that was present at the Defender's meeting today, the PAG meeting, referred specifically to new language that they had seen.

COMMISSIONER HARKENRIDER: Okay, well if they could get that to me.

MR. BENNETT: Northern District of California, that would be San Francisco.

COMMISSIONER HARKENRIDER: Well if you could pass that on to me, I'd really appreciate it.

COMMISSIONER TACHA: But I am wondering what it is you are really asking for, the Strickland certainly we don't think people can waiver their effective counsel.

MR. BENNETT: But if you waive a 2255, that's the only way you can raise Strickland. So if you've got language in there waive right of appeal and waives his right to seek collateral review of his sentence and conviction, he is waiving a claim of ineffective counsel because the courts hold all over the country, the only way you raise ineffective assistance is on a 2255. Because no record will have been made below.

And that's what I think the Northern District -- what I'm saying is I can see a quid pro quo waiver. That seems to me to be fair. But a forced waiver is what I'm talking about, where it's a one way waiver. The government gives up nothing. What we are seeing more and more of. The government give up nothing. The defendant waives his right to appeal, not the government.

Both Sentencing Guideline issues and 2255. They will put in a standard sentence he does not waive his right to appeal from an illegal sentence.

COMMISSIONER TACHA: And I think the case law is clear that --

MR. BENNETT: That you can't waive that.

COMMISSIONER TACHA: -- ineffective assistance is also not waivable.

CHAIRMAN CONABOY: That brings us into that area that you are talking about where we are trying to advise both sides on what is in our opinion the right thing to do. Don't waive, discourage waivers unless both sides waive.

MR. BENNETT: Yes.

CHAIRMAN CONABOY: Waiver is usually part of bargaining.

MR. BENNETT: Well the cases I think are legion that say a waiver that's knowingly and intelligently entered into, since you can waive Constitutional rights, you can certainly waive statutory rights.

CHAIRMAN CONABOY: Oh sure. And there is no -- that's why I'm saying, it would seem to me to be very hard to design something to put in the Guidelines Manual. This is something that always concerns me what we put in there. That really amounts to advice on how to handle a case.

MR. BENNETT: I think it would be a one or two sentence policy statement that the Commission strongly discourages plea agreements which force one side, you don't even have to pin point the government, one side to waive appellate review or collateral attack review without both sides being bound, without both sides having given up rights --

CHAIRMAN CONABOY: I don't like the waiver, I don't like the waivers so I'm not arguing in favor of them. I think it's an atrocious thing because it's mostly -- it embarrasses me really because the only justification I hear for it is it's less work for the judges and that's always an embarrassing thing for me. That's what we are supposed to do.

MR. BENNETT: Well, it's less work for the appellate judges if it's for -- and I know it's a concern because your Sentencing Guideline cases drive your docket on appeal in a large number of cases.

CHAIRMAN CONABOY: Well that's still a concern to me as to whether or not we can, and the Commission, as the Commission or in the Guidelines, we have to be very careful about giving advice it seems to me. Because bargaining has become a way of life in the criminal sentencing process. And you wouldn't want to take that bargaining capacity away really from either side, I guess.

MR. BENNETT: I don't think it would be binding. I think it would be what we are talking --

CHAIRMAN CONABOY: Yes, I understand you are talking about an advisory comment.

MR. BENNETT: Advisory comment.

COMMISSION GELACAK: As a practical matter it doesn't have any effect because --

CHAIRMAN CONABOY: -- binding effect, but --

COMMISSION GELACAK: -- you still have the defendant coming in saying that he is making a knowing waiver here. I mean what does it get us?

MR. BENNETT: It gets you that -- I'm saying this should be in the area of a study. I think the Commission needs to be fully advised what's happening here, getting new sample plea bargainings up. If nothing else, it may, and it gets back to Justice what's happening in the Northern District of California, through any activities of the Commission, it may in fact lead Justice to reconsider it.

I think it's an area of concern in the criminal justice system with the Guideline.

COMMISSION GELACAK: I couldn't agree with you more and I think it's an outrageous practice. I just don't think we are going to have any impact on it.

CHAIRMAN CONABOY: Maybe just talking about it might have some effect, I agree with that. And I think it's already had some effect. I think there are a few districts now who have abandoned and will not accept pleas where there are waivers. I'm not sure of that.

COMMISSIONER HARKENRIDER: Judge, I can tell you, I've had an ongoing dialogue with the Defense Bar about this and have basically opened the doors of Justice to coming, for defense attorneys to come to us when they are confronted with a waiver that they are unable -- that they think is onerous and is basically overbearing and unfair and that they have not been able to go to their U.S. Attorney and deal with.

And quite frankly, nobody has come in the Northern District of California in the past, my understanding was that any problems there had been taken care of in terms of this exact issue. I mean this is an issue that the Department is open to dialogue on. The memo that the Department sent out regarding waivers of appeals talked about the inappropriateness of seeking waivers and the fact that the courts have already held that you cannot waive things such as ineffective assistance of counsel. And that's how a 2255 would still be raised.

So, I mean this is something that we are certainly open to talk about.

MR. BENNETT: Does the Justice Department -- I would like to see that kind of a -- is that a memorandum to the U.S. Attorneys' Office?

COMMISSIONER HARKENRIDER: You've seen this memo, it's been published. The Keeney memo. It's been widely -- we've disseminated it.

MR. BENNETT: Well in the particular case, it may be a situation where the defense attorney bit the bullet, didn't want to raise a ruckus at that point on it, had what he considered to be a generally decent plea agreement, but he was offended personally by that and now he shared it and then -- history.

COMMISSIONER HARKENRIDER: We'll be glad to look at it and talk to you about it.

MR. BENNETT: That's about it.

CHAIRMAN CONABOY: Thank you very much. Those are, of course, the matters you raise, as I said to Mr. O'Dowd very important items. And many of them, as you know, we've discussed at length.

MR. BENNETT: Oh I had one last point. I'm sorry.

CHAIRMAN CONABOY: That's fine.

COMMISSIONER GOLDSMITH: Thirty seconds. Wait for next year.

[Laughter.]

MR. BENNETT: As the judge said, you've made your record, Mr. Bennett, move on. I said, well then can I over lunch go back and type up a short pleading and submit it for the record, because he didn't want to hear any more. I guess I can't prohibit you from doing that.

COMMISSION GELACAK: Commissioner Goldsmith's comment is worthy of a Utah Jazz fan.

MR. BENNETT: Be it worth of a Utah, you are right. The last, it's in my letter but I want to make sure, we are concerned on this criminal history, we think it should be at least on the two year cycle. It's worthy of research, but we think the case law is so embedded in that area, you've got ten years of case law.

I wouldn't suggest major tinkering at this point in this area, it's a matter I think of research and then if there are two or three bullet areas that you come up with in criminal history to bring it back, but I don't think it's on the one year -- I hope it's not on the one year cycle. Because it's a big area, criminal history.

[Several people talking at once.]

MR. BENNETT: Well, I'm not sure we would disagree.

CHAIRMAN CONABOY: We just feel it's one of those areas that needs to be looked at, but we agree with you that it's not something can be done overnight by any means. There is a lot of implications in there and every time you think you have a solution it's sometimes worse than the problem that we have.

COMMISSION GELACAK: You are not suggesting that the Practitioners' Advisory Group would say to us that criminal history is not worthy of looking at?

MR. BENNETT: No, no. That would be inconsistent with our past positions in a whole lot of other areas. But I'm saying that I don't think it's certainly not on the highest priority in our judgement, in terms of your resources at this point. And the --

CHAIRMAN CONABOY: All right.

MR. BENNETT: -- question of when you are going to get new Commissioners.

CHAIRMAN CONABOY: I'm going to say thanks again, so if you've got one more --

MR. BENNETT: No, that's it.

[Laughter.]

CHAIRMAN CONABOY: -- get it in before the thank you. Thanks. I do mean that and we appreciate your, and I repeat that we've got several other written submissions and we will promise to look at those as carefully as we can and keep them in our consideration.

Is there anyone else who has any comment here this morning?

[No response.]

CHAIRMAN CONABOY: If not, I think we can declare the meeting adjourned and thank you all very much for coming.

(Whereupon, the above matter was concluded at 10:27 a.m.)