Minutes from March 20, 2001

Minutes of the March 20, 2001
United States Sentencing Commission
Business Meeting

Chair Murphy called the meeting to order at 1:04 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
Joe Kendall, Commissioner
Michael E. O'Neill, Commissioner
Michael J. Gaines, Commissioner Ex-Officio
Michael E. Horowitz, Commissioner Ex-Officio
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald Purdy, Chief Deputy General Counsel

Chair Murphy stated that the Commission was scheduled to vote on proposed emergency amendments for List I chemicals and ecstasy. Before voting on the amendments, Chair Murphy provided some background about where the Commission is in its annual amendment cycle and the procedure for submitting amendments to Congress. She stated that the Commission must submit amendments to Congress by May 1, and because of this deadline, the Commission is extremely pressed at this time of year.

Chair Murphy reminded those present that the Commission will hold its last public meeting for this amendment cycle on April 5th and 6th. At this meeting, the Commission will vote on a number of proposed amendments. She stated that the Commission previously voted on several amendments during the February Business Meeting, but is still involved in a number of very complex areas.

Chair Murphy stated that the Commission heard testimony from a number of witnesses at the March 19, 2001, Public Hearing. Four panels of witnesses spoke on a number of different guideline areas; two of the four panels specifically addressed ecstasy.

Chair Murphy discussed the fact that, in addition to testimony regarding proposed amendments, the Commission received comments on the process that the Sentencing Commission uses in gathering information. There was a suggestion that the public have access to papers, documents, and submissions that the Commission receives from outside groups. Chair Murphy stated that the Commission is considering ways to make these submissions routinely available to the public.

Chair Murphy officially welcomed the Commission's newest Commissioner Ex-Officio, Michael Horowitz.

The Commission then turned to consideration of the proposed emergency amendments on List I chemicals and Ecstasy.

Emergency Amendment 3 - List I Chemicals

This proposed emergency amendment addresses the three-part directive in section 3561 of the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106-310 regarding enhanced punishment for trafficking in List I chemicals. That section requires the Commission to promulgate an amendment implementing the directive under emergency authority.

Donald Purdy stated that the proposed emergency amendment will be effective May 1, 2001. He also stated that this proposed amendment uses an actual yield in determining the appropriate punishment levels in order to be consistent with the legislative directive. Thus, the amendment addresses how many units of methamphetamine can be produced from one unit of ephedrine. The Commission based the proposed penalty structure on the Drug Enforcement Administration's determination that the average yield is between 50 and 75 percent. This proposed amendment takes a conservative approach and assumes a 50% actual yield from a unit of ephedrine.

Vice Chair Steer moved for adoption of this emergency amendment as described by Donald Purdy, with an effective date of May1, 2001. Seconded by Commissioner Kendall.

Chair Murphy stated that this amendment had been on the agenda for a previous meeting, but was deferred for further consideration. Thus, the Commission was able to devote much consideration to the proposal.

The proposed emergency amendment passed unanimously.

Proposed Emergency Amendment 1 - Ecstasy

This proposed amendment addresses the directive in the Ecstasy Anti-Proliferation Act of 2000, section 3664 of Pub. L. 106-310, which instructs the Commission to provide, under emergency amendment authority, increased penalties for the manufacture, importation, exportation, or trafficking of Ecstasy. The directive specifically requires the Commission to increase the base offense level for 3,4-methlenedioxy methamphetamine (MDMA), 3,4-methylenedioxy amphetamine (MDA), 3,4-methlenedioxy-N-ethylamphetamine (MDEA), paramethoxymethamphetamine (PMA), and any other controlled substance that is marketed as Ecstasy and that has either a chemical structure similar to MDMA or an effect on the central nervous system substantially similar to or greater than MDMA.

Chair Murphy stated that the Commission received more public comment on this topic than any other since the Commission was appointed in November 1999. She stated that the Commission has received expert testimony and opinion regarding ecstasy. Additionally, the Commission has considered scientific and popular literature, as well as comment from various governmental and independent groups that study ecstasy, its actual use, the effect it has on the human body, and its patterns of trafficking. The Commission has taken all of this testimony and comment into consideration. Chair Murphy stated that the Commission believes that this guideline presented quite a challenge in terms of putting all the information together because the patterns of trafficking and the nature of the substance are not like any other drug.

Commissioner O'Neill moved to adopt the revised proposed emergency amendment to become effective May 1, 2001. Seconded by Commissioner Johnson.

Chair Murphy stated that this proposed amendment is different from the version that was previously published. Donald Purdy said that the initial published version set the punishment levels at one gram of ecstasy equivalent to 1000 grams of marihuana. The revised version currently before the Commission sets the punishment levels at one gram of ecstasy equivalent to 500 grams of marihuana. This revised proposed amendment responds to the Ecstasy Anti-Proliferation Act of 2000 that includes a sense of Congress resolution that the base offense levels for ecstasy are too low, particularly for high-level traffickers, and penalties should be increased such that they are comparable to other drugs of abuse.

Before voting on the proposed emergency amendment, the Commission discussed the proposal.

Commissioner O'Neill stated that although he made the motion to adopt this emergency amendment, he does so with some concern that, ordinarily when we choose to make something a malum in se crime, assign penalties and prohibit the conduct, it is done on the basis that the crime has some sort of harm to the individual, or some collateral harm to society, and/or we seek some sort of deterrent effect. Commissioner O'Neill declared that although ecstasy is doubtless a harmful drug, he is not entirely clear just how harmful ecstasy is compared with other drugs like heroin and cocaine. Commissioner O'Neill stated that he hopes that this penalty structure does not discourage further research into whether or not this drug has any therapeutic benefits; just how harmful a drug it is, in terms of short-term and long-term effects on the individual; and also that law enforcement keeps track of what kind of a social collateral damage we see with people actually using the drug. For these reasons, Commissioner O'Neill stated that he is somewhat hesitant about the penalty that the Commission has chosen and believes that the issue does need to be revisited at some point. Commissioner O'Neill stated that he is convinced that at least for the moment, it is certainly a harmful drug and something that the Commission needs to take action against.

Vice Chair Castillo stated that he will support the proposed amendment. He indicated that it was difficult for the Commission to arrive at this point and the proposed amendment represents a compromise. Vice Chair Castillo stated that he remains convinced that ecstasy is a unique drug that cannot be equated with any other drug currently in the marketplace. He declared that he welcomed the difficult job that the Commission received from Congress. Vice Chair Castillo noted that Congress could have instructed the Commission to raise the penalty in a very precise manner. Although Congress directed the Commission to raise the penalty structure for ecstasy, Congress did not specifically direct how this was to be done. Vice Chair Castillo stated that this is a better use of the Sentencing Commission than setting a mandatory minimum penalty.

Vice Chair Castillo concurred with Commissioner O'Neill's recognition that current scientific knowledge concerning ecstasy is very contested. He stated that commissioners who are judges are accustomed to resolving these types of contested issues.

Vice Chair Castillo stated that here have been issues raised about the process the Commission used in gathering information during the amendment cycle. He indicated that the Commission plans to make improvements in the process such that any information submitted to the Commission generally will be presumed public.

Vice Chair Castillo discussed how he personally arrived at his decision to support the amendment. He stated that he discounted the government's presentation to the Commission, but at the same time, he discounted some of the testimony that was heard at the public hearing. Vice Chair Castillo stated that this is in the nature of contested evidence; it happens every day in courtrooms throughout the country. The compromise that the Commission reached reflects his own independent judgement. Vice Chair Castillo stated that if he were a member of Congress, he would conclude that this drug presents great societal harm. He stated that he would also conclude that this drug has epidemic potential. In fact, his own courtroom saw an increase in ecstasy cases from zero to four. Vice Chair Castillo stated that if this pattern is repeated throughout the country, this represents the type of epidemic proportions that ecstasy can have. Vice Chair Castillo declared that the important point for him is that this particular drug is abused by the nation's youth. This is important because it strikes at the very heart of the country and demonstrates that the Commission needs to try and regulate what could become an epidemic problem. For this reason, Vice Chair Castillo stated that he will vote to adopt the proposed emergency amendment because he believes it represents a reasonable outcome. Finally, he stated that he will vote for the amendment in the hopes that his colleagues will continue to bring some moderation and sentencing discretion to judges who sentence first-time, non-violent offenders who do not cause great economic harm.

Vice Chair Steer stated that he concurs with many of the sentiments that were expressed by Commissioner O'Neill and Vice Chair Castillo. He believes that this amendment is an appropriate response to the Congressional directive. Vice Chair Steer stated that there are many things that the Commission does not know and would like to know about the harms of ecstasy; in an ideal world, the Commission would have more information. Vice Chair Steer declared that the Commission has to act based on what they do know. Among the things that the Commission does know about ecstasy is that the drug has the potential of causing substantial, and perhaps permanent, brain damage in users, even at relatively low amounts. Though this has not been definitively established, Vice Chair Steer stated that when talking about the nation's youth, this information causes great concern. He declared that the Commission has an opportunity to accomplish some very important crime control objectives by acting at an early stage to try to stop the cycle that has taken place in so many other drugs of abuse. Increasing penalties at this early stage hopefully will send a message of deterrence. Vice Chair Steer stated that the penalties will be visited upon individuals who are involved in trafficking substantial quantities of ecstasy. As directed by Congress, the penalty increases are not hitting the user, but the substantial trafficker. Vice Chair Steer stated that for these reasons, he supports the amendment.

Because this amendment received so much public comment and consideration, Chair Murphy requested a roll-call vote.

Staff Director McGrath called for the vote. Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Vice Chair Steer voted yes. Commissioner Johnson voted yes.

Before voting, Commissioner Kendall stated that he hopes that in some way this message is conveyed to the young people across the country who traffic in this drug: it is now serious business. What the Commission is voting on is to raise the penalties for ecstasy distribution in excess of 15 times what the penalty is currently. Commissioner Kendall stated that he hopes the message goes out that this will be punished very seriously. Commissioner Kendall voted yes.

Commissioner O'Neill voted yes. Chair Murphy voted yes. The motion passed unanimously.

Donald Purdy then suggested that the Commissioners entertain a motion to authorize the staff to make any technical changes and revisions as may be necessary to these two amendments.

Vice Chair Steer moved to authorize staff to make technical revisions. Seconded by Vice Chair Castillo. Passed unanimously.

Chair Murphy adjourned the public meeting at 1:25 p.m.