Minutes from August 28, 2001

Minutes of the August 28, 2001
U.S. Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 11:38 a.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
John P. Ellwood, Commissioner Ex-Officio
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel

First on the agenda was the approval of the minutes from the April 6, 2001 public business meeting.

Vice Chair Steer moved to approve the April 6, 2001 public meeting minutes. Seconded by Commissioner Johnson. Passed unanimously by voice vote.

Chair Murphy then stated that the Commission had one item on the agenda for consideration: proposed amendments to the Commission’s Rules of Practice and Procedure to be published for comment in the Federal Register.

General Counsel Tetzlaff provided an overview of the proposed amendments to the Rules, stating that the draft amendments were prepared by staff in furtherance of the Commission’s desire to increase public availability to its documents and public meetings. General Counsel Tetzlaff suggested the Commission consider a thirty day comment period.

General Counsel Tetzlaff summarized the draft proposed amendments, highlighting that Rule 1.1 makes clear that the draft amendments do not create any legal rights for any person other than those rights set forth therein. Rule 2.2 adds to Miscellaneous Matters a clause which states that the Commission is not required to hold public meetings for setting amendment priorities, approving technical and clerical amendments to the Rules of Practice and Procedure, and decisions to hold a nonpublic meeting. Rule 3.1 continues the current rule that allows for electronic participation in Commission meetings by commissioners. Rule 3.2 establishes the general rule that all meetings between outside parties and the Commission will be public. Rule 3.3 describes the occasions when the Commission may hold a nonpublic meeting: conducting Commission business, personnel matters, budget meetings, and meetings between the Commission and staff. Rule 3.3 also provides that the Commission, by majority vote of members then serving, may decide when it is appropriate to hold a nonpublic meeting with outside groups. An example of when a nonpublic meeting might be necessary is when the subject of the meeting would disclose confidential investigatory techniques, or compromise an ongoing investigation.

Chair Murphy clarified that the proposed example describes only one possible situation in which the Commission may reach this decision.

General Counsel Tetzlaff continued describing the draft amendments to the Rules, stating that Rule 5.1 clarifies what is meant by “public comment.” “Public Comment” specifically does not include internal communications between and among Commissioners, Commission staff, and any person designated by an Ex-Officio Commissioner as support staff. Under Rule 6.2, the Commission sets forth items available for public inspection, including such things as approved meeting minutes, public hearing transcripts, and public comment as defined within the Rules. With respect to nonpublic meetings, the Commission will disclose a list of the outside parties attending, issues upon which the Commission was briefed, and unless directed otherwise by the Chair, or a majority of the Commission then serving, copies of materials submitted by outside parties.

Commissioner Kendall moved to publish the draft amendments to the Rules of Practice and Procedure in the Federal Register for a thirty day comment period. Seconded by Commissioner O’Neill. Passed unanimously by voice vote.

Chair Murphy acknowledged a letter the Commission received from departing Visiting Assistant United States Attorney, Lynn Rosenthal. Specifically, the letter praised the Commission for all of its hard work creating, revising, and modifying the Guidelines. Chair Murphy stated that the Commission enjoyed having Lynn Rosenthal as a staff member.

Chair Murphy stated that the Commission had been very busy since last in Washington, D.C. The Commission held meetings in Georgia and South Dakota, including two planning sessions to discuss the upcoming amendment cycle. She stated that members of the public may have noticed that the published list of possible priorities includes issues designated for a two-year time span. In May, the Commission met with the Criminal Law Committee of the Judicial Conference, and also attended the annual training session for probation officers and attorneys put on by Pamela Montgomery, with assistance from Frank Larry and many others.

Chair Murphy described the public hearing that the Commission held in Rapid City, South Dakota this past June. The hearing concerned the impact of the federal sentencing guidelines on Native Americans who are subject to federal prosecution for what would ordinarily be state crimes. The Commission heard from the nine major tribal chiefs, elders, and other individuals. Also, the Commission received a considerable amount of written comment subsequent to the hearing.

Chair Murphy stated that the Commission has been reaching out to various groups, talking about the work of the Commission. For example, Vice Chair Castillo attended the American Bar Association meeting; Vice Chair Steer met with the Practicing Law Institute; Chair Murphy and Vice Chair Castillo met with groups to discuss the organizational guidelines.

Chair Murphy stated that Vice Chair Steer met with judges at the Sixth Circuit Judicial Conference and the Ninth Circuit Chief Judges Meeting. Vice Chair Steer also participated in a Massachusetts Law School videotaped production addressing drug sentencing policy and mandatory minimums.

Chair Murphy mentioned that staff attorney Mark Allenbaugh assisted her with a law review article on the organizational guidelines that is forthcoming in the Iowa Law Review, but is currently available on the Commission’s website. Also, Susan Hayes helped Chair Murphy with a law review article forthcoming in the St. Louis Law Review that discusses the recent and future work of the Commission. This is also available on the website.

Chair Murphy said that the Commission had worked very hard to fully detail and explain the reasons for the 2001 amendments. She said the Commission received very positive feedback on the reasons for the amendments.

Chair Murphy briefly discussed the hearing in Rapid City, South Dakota, stating that a transcript of the hearing is available on the Commission’s website. The Commission heard many interesting points of view and various perspectives. She stated that Commission was working to make members of Congress aware of the availability of the transcript. Also, the Commission wrote letters to everyone who testified at the hearing. Information regarding the hearing, as well as written comment, is being circulated to key members of Congress. The Commission received very positive feedback from Senate Majority Leader Daschle. Chair Murphy stated that Commission staff and Vice Chair Castillo will be working on the possibility of a liaison or advisory group to establish a fruitful means of staying in touch with Native American groups. Also, they will be considering ways to involve Native Americans from other parts of the country. Chair Murphy mentioned that one issue is the lack of interpreters for those defendants whose native tongue is Lakota. Susan Hayes suggested that the Administrative Office of the United States Courts might be able to assist with finding translators.

Also, Chair Murphy mentioned three special upcoming training sessions for attorneys who are appointed to handle these cases. The training sessions will be held this October in South Dakota. Chair Murphy stated that many commissioners have been talking with various outside groups about the organizational guidelines. The Commission has received many suggestions for changes to the organizational guidelines, and while this is not on the Commission’s priority list for the upcoming amendment cycle, the Commission is considering the formation of an ad hoc advisory group for considering these issues.

Commissioner O’Neill updated the Commission on the progress of the 15 year study. He stated that the Commission is in the process of celebrating the 15 year anniversary of the adoption of the guidelines. In anticipation of this anniversary, Commissioner O’Neill stated that the Commission is engaged in a review of the guidelines and whether they fulfill the statutorily mandated purposes of sentencing. This study is largely an assembly of various empirical projects addressing whether or not the guidelines are successfully fulfilling the statutory mandates.

As the first step in this process, the Commission will be sending a survey to district court and appellate court judges on their attitudes regarding whether or not the guidelines are succeeding at their mission. Commissioner O’Neill stated that as a second step, the Commission is performing a comprehensive survey of recidivism among federal offenders. The Commission initiated a random sampling of over 6,000 cases in order to look at, in a systematized fashion, criminal history and pre-sentencing reports to determine whether the criminal history categories are working as intended and the scope of recidivism among federal defendants. The survey is nearly complete. Soon, the Commission will undertake an analysis of this data.

Commissioner O’Neill stated that the Federal Bureau of Investigation was kind enough to provide a National Crime Information Center terminal so that the Commission will be able to better track recidivism rates. The Commission thus will be able to assess the adequacy of the criminal history category scores and also to determine whether the Commission is focusing on the appropriate crimes in predicting recidivism with a reasonable degree of certainty.

Commissioner O’Neill also stated that the Commission has completed the rough draft of a comprehensive literature review of articles by outside parties. Hopefully, the literature review will be available to be provided to the public soon. Also, the Commission will be outlining additional projects that are planed in house and projects to be outsourced. Commissioner O’Neill stated that the Commission will be working with the National Institutes of Justice to have people outside the Commission engaged in evaluating the efficacy of the guidelines.

Chair Murphy then introduced John P. Elwood, the new Ex-Officio Commissioner from the Department of Justice. She also introduced Karl Brooks, the Commission’s newest Judicial Fellow.

Commissioner O’Neill then moved to adjourn the meeting. Seconded by Vice Chair Sessions.

The meeting was adjourned at 12:00 p.m.