Minutes from April 5, 2002

Minutes of the April 5, 2002
U.S. Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 10:10 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, participating via teleconference
Joe Kendall, Commissioner
Michael E. O’Neill, Commissioner
John P. Elwood, Commissioner Ex-Officio
Edward F. Reilly, Commissioner Ex-Officio
Timothy McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel
Judith Sheon, Special Counsel

Chair Murphy opened the meeting by welcoming visitors. She stated that at the last public meeting she announced that the Commission was moving forward with forming an advisory group on sentencing issues in respect to Native Americans sentenced under the Major Crimes Act. She stated that the Commission has contacted the persons identified as exceptionally qualified by experience and background for this work and has received positive responses. Chair Murphy said that Chief Judge Lawrence Piersol from South Dakota has agreed to chair the advisory group.

Chair Murphy reported on the judicial survey that is part of the 15 year study. She stated that the Commission had a 52% response rate from district court judges, who actually sentence offenders, and a 34% response rate from circuit judges, who review sentences on appeal. She stated that in addition to the tabulated responses, many judges took the time to write additional comments and letters. Chair Murphy stated that the results of the survey will be very helpful as the Commission continues its work on the 15 year study.

Chair Murphy asked Commissioner O’Neill to provide an overview of the Commission’s April 12, 2002, academic workshop. He stated that the workshop was designed to let academics and members of government research bureaus know what the Commission’s 15 year study involves and to explain that its purpose is to evaluate the guidelines in the context of the statutory purposes of sentencing as identified by Congress.

Chair Murphy mentioned that the Commission’s annual national training seminar for probation officers and lawyers is scheduled for May 8 - 10, 2002. Pamela Montgomery reported that the Commission had already received a tremendous response and that more than 250 participants had registered by early April.

Chair Murphy informed those present about other upcoming Commission activities. She noted that commissioners will attend the Criminal Law Committee meeting in May and that the Commission values its input and expertise. She stated that commissioners planned to attend the Federal Judicial Center’s National Sentencing Institute for judges and a meeting with the Ethics Officers Association, both in June. The meeting with the Ethics Officers Association will include the chair of the Commission’s ad hoc advisory group on the organizational guidelines, whose work is very timely due to current concerns about corporate crime.

Chair Murphy announced that Andy Purdy, Chief Deputy General Counsel, will serve a one year detail with the President’s Critical Infrastructure Protection Board, beginning April 15, 2002. She stated that the Commission would miss Andy’s experience and expertise during this period, but that it was an exciting opportunity and the Commission wished him well.

Chair Murphy stated that the Commission had already passed a number of guideline amendments to be sent to Congress on May 1, 2002. She reviewed guideline amendments in the following areas: the new cultural heritage guideline designed to protect national treasures and monuments, the product of two years of work including some refinements prompted by September 11; an expansion of the official victims enhancement; an amendment regarding the Foreign Corrupt Practices Act, making bribery of foreign officials more comparable to public bribery than commercial bribery; an amendment addressing human trafficking and the commercial sex industry; and amendments in 14 other areas.

Chair Murphy noted that the Commission had held several public meetings recently and asked if there was a motion to adopt the minutes from the February and March public meetings. Commissioner Johnson moved to adopt the minutes from February 25 and 26, and March 19 and 20, 2002. Seconded by Commissioner O’Neill.

Vice Chair Steer requested that the word "deduction" be changed to "reduction" on page two of the February 26 minutes. Chair Murphy acknowledged the correction, stating that if no one objected the change would be made. The motion to adopt the minutes of February 25 and 26, and March 19 and 20, 2002, passed unanimously by voice vote.

Terrorism

Chair Murphy stated the Commission had unfortunately had some foresight in passing the previous cycle’s amendment on nuclear, biological, and chemical weapons offenses. She then asked General Counsel Tetzlaff to set the backdrop for the terrorism amendment. General Counsel Tetzlaff asked that the record reflect that the Commission had previously been provided with prison impact information on all amendments under consideration. Mr. Tetzlaff then introduced the proposed guideline amendments dealing with terrorism offenses. Mr. Tetzlaff stated that on October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. 107–56. Among other things, the Act created a number of new terrorism, money laundering, and currency offenses, and increased the statutory maximum penalties for certain pre-existing offenses. In light of this legislation, the Commission has assessed the guidelines’ treatment of terrorism offenses and certain money laundering and currency offenses as they may be related to terrorism.

Mr. Tetzlaff stated that this is a multi part amendment proposed in response to the USA PATRIOT Act of 2001 (the Act) and the Commission’s assessment of the guidelines’ treatment of offenses involving terrorism. Parts (A) through (D) address offenses that involve, or potentially involve, terrorism. Providing guideline treatment for these offenses in Chapter Two (Offense Conduct) is important, in part, to ensure applicability of the Chapter Three adjustment for terrorism, §3A1.4. Specifically, Parts (A) through (D) of this amendment address the following: (A) new predicate offenses to federal crimes of terrorism; (B) other predicate offenses to federal crimes of terrorism that are not currently referenced in the Statutory Index; (C) penalties for terrorism conspiracies and attempts; and (D) issues related to the terrorism adjustment in §3A1.4. Mr. Tetzlaff added that Part (E) of this amendment addresses money laundering provisions of the Act. Part (F) addresses miscellaneous issues.

Mr. Tetzlaff thanked the Terrorism Team, consisting of Pam Barron, Judy Sheon, Vanessa Locke, Mary Didier, and Mark Allenbaugh, for their hard work. Mr. Tetzlaff stated that the Team did a prodigious amount of work in a very short time period. Like a lot of other people in and out of Government, the Team responded when needed after September 11th, putting in many nights and weekends to produce the amendment package. Mr. Tetzlaff also stated that staff may identify other potential guideline amendments for terrorism offenses that could not be addressed this amendment cycle due to public notice requirements.

Mr. Tetzlaff stated that a motion would be in order to promulgate this multi part amendment with an effective date of November 1, 2002, and to authorize staff to make technical and clarifying changes.

Before moving the amendment, Commissioner Kendall spoke to join Mr. Tetzlaff’s accolades for the Terrorism Team. Commissioner Kendall praised the USA Patriot Act and added that Ex-Officio Commissioner Elwood was instrumental in drafting the Act. Commissioner Kendall stated that the terrorism amendment package is very important even though it received less attention than other matters because the amendments were less controversial.

Commissioner Kendall moved to promulgate the terrorism amendment package, effective November 1, 2002, and to authorize staff to make technical and clarifying changes. Seconded by Vice Chair Sessions.

Vice Chair Steer spoke to concur in commending the Terrorism Team. Vice Chair Steer added that he has the greatest respect for the ability of someone like Pam Barron to take this very complex subject matter and organize the team’s resources to address the issues in a very short period of time. He stated that the team’s work put the Commission in a position to be very responsive to Congress.

Ex-Officio Commissioner Elwood stated that it really was a superhuman effort to get this amendment package ready in such a short time. Ex-Officio Commissioner Elwood stated that the USA Patriot Act was signed into law on October 26, 2001, by which time the amendment cycle was in full swing. Within just a few meetings of the bill’s passing, the Commission already had a draft amendment that reflected an incredible amount of thought and work. He commended the team for their hard work and commended the Commission as a whole for its prompt attention to terrorism issues and for accomplishing this important work in one amendment cycle.

Commissioner O’Neill commended the staff in pulling the amendment package together. He added special thanks to the Department of Justice for its responsiveness and the help it offered the Commission in addressing terrorism amendments during a very difficult time. Commissioner O’Neill stated that the coordination between the Commission and the Department was a model of effort in working in a collaborative fashion. He added that one of the more important things recently stated by the Attorney General is the decision to deploy more resources in the battle against terrorism. Commissioner O’Neill stated that this amendment package was one of the more important things the Commission has accomplished this year.

The motion to promulgate the terrorism amendment package passed unanimously by voice vote.

Discharged Terms

Mr. Tetzlaff introduced the proposed amendment concerning discharged terms of imprisonment. This proposed amendment responds to the Criminal Law Committee’s recommendation that the Commission amend §5G1.3, pertaining to undischarged terms of imprisonment, to include discharged terms of imprisonment. The amendment proposes to amend the Commentary to provide a downward departure note that enables a court to depart in a case in which §5G1.3(b) would have applied if the term of imprisonment had not been discharged. The proposed amendment also addresses a circuit conflict as to whether a downward departure is permissible in such cases.

Mr. Tetzlaff stated that a motion would be in order to promulgate the proposed amendment with an effective date of November 1, 2002, and to allow staff to make technical and clarifying changes.

Vice Chair Steer moved to adopt the amendment. Seconded by Vice Chair Castillo.

Chair Murphy noted that this subject was on the Commission’s agenda this amendment cycle because it is an area where the courts have had some difficulty.

Vice Chair Steer stated that he believes the Commission recognizes this amendment is a less than ideal solution. He stated that as staff and commissioners got into the issues and this particular guideline, they identified a number of potentially problematic areas that need to be addressed. Vice Chair Steer stated that this solution perhaps should be seen as an interim solution, and that perhaps a better model would be to provide a downward adjustment rather than a departure. The Commission, however, was not procedurally in a position to adopt and perfect that approach at the current time. Vice Chair Steer stated that he hopes this is an issue that the Commission will be able to readdress in the next amendment cycle and perhaps do a more complete job.

Chair Murphy added that she believes there were some issues that the Commission was not able to address this year, but this is such a continuing process that it is rare when no future work is needed.

The motion passed unanimously by voice vote.

Miscellaneous Drug Amendments

Chair Murphy stated that Vice Chair Sessions has a motion regarding miscellaneous drug amendments and asked the General Counsel to describe the amendments first. Mr. Tetzlaff stated that the proposed amendment achieves the following:

Base Offense Level and Mitigating Role Adjustment

The proposed amendment provides a maximum base offense level of 30 if the defendant receives an adjustment under §3B1.2 (Mitigating Role). This base offense level cap is designed to limit the exposure of low level drug offenders to increased penalties based on drug quantities that overstate the defendant’s culpability given the defendant’s role and function in the drug trafficking offense while also providing a guideline range (97 to 121 months) that is consistent with mandatory minimum penalties.

Ecstasy Offenses

The proposed amendment amends the Typical Weight Per Unit (Dose, Pill, or Capsule) Table in Application Note 11 of §2D1.1 to reflect more accurately the type and quantity of ecstasy typically trafficked and consumed. Specifically, the proposed amendment adds a reference for MDMA (3,4-methylenedioxymethamphetamine) in the Typical Weight Per Unit Table and sets the typical weight at 250 milligrams per pill. Ecstasy usually is trafficked and used as MDMA, not MDA, the drug currently listed in the table. In addition, the proposed amendment revises upward the typical weight for MDA from 100 milligrams to 250 milligrams.

Maintaining Drug-Involved Premises

The proposed amendment addresses concerns that §2D1.8 (Renting or Managing a Drug Establishment; Attempt or Conspiracy) does not adequately punish certain defendants convicted under 21 U.S.C. § 856 (Establishment of manufacturing operations). That statute originally was enacted to target so-called "crack houses" and more recently has been applied to defendants who promote drug use at commercial dance parties frequently called "raves." The proposed amendment increases the maximum offense level under §2D1.8(a)(2) from level 16 to level 26.

Clarification of Operation of §2D1.1(b)(6)

Finally, the proposed amendment addresses two application concerns regarding application of the two level reduction under §2D1.1(b)(6). The proposed amendment clarifies that application of the two level reduction under §2D1.1(b)(6) does not depend on whether the defendant is convicted under a statute that carries a mandatory minimum term of imprisonment.

The proposed amendment also addresses the interaction of §2D1.1(b)(6) and §5C1.2(b), which provides a minimum offense level of 17 for certain offenders. Specifically, the proposed amendment clarifies that §5C1.2(b) is not pertinent to the application of §2D1.1(b)(6).

Mr. Tetzlaff stated that a motion would be in order to promulgate this amendment with an effective date of November 1, 2002, and to authorize staff to make technical and clarifying changes.

Vice Chair Sessions moved to promulgate the proposed amendment.

Vice Chair Sessions stated that the proposal covers a number of separate, but related areas — the amendment is intended to be a balanced package. Vice Chair Sessions stated that he felt very strongly about the first provision of the amendment, the mitigating role cap. He said that this is a provision that has been before the Commission a number of times in the past, and almost passed as early as 1991 and 1992. This is an issue that has been of concern to the Commission for some time. Vice Chair Sessions commended Vice Chair Steer for his early involvement in this particular issue and his support of this issue.

Vice Chair Sessions stated that the amendment accomplishes three things. First, the amendment targets persons who play minor or minimal roles in offenses. The people who will receive this relatively limited but very important benefit are not managers, organizers, or persons who develop conspiracies, but small participants. Second, the amendment reflects a belief that the current drug penalties are often too high for first time, nonviolent offenders and persons who play minor roles in the offense. Finally, the amendment shifts the focus to determining the defendant’s role in the offense. For these reasons, Vice Chair Sessions stated that he strongly believes the amendment should be adopted.

The motion was seconded by Vice Chair Castillo. Vice Chair Castillo commended Vice Chair Sessions for his strong work on this amendment. He stated that in the long run, this amendment represents a moderate change in the penalties for minor participants. Vice Chair Castillo added that no one should consider this amendment as a wholesale reduction in the way these offenses are being treated. He also stated that he believes the amendment is uniformly supported throughout the criminal justice system.

Commissioner O’Neill stated that the principal feature that distinguishes the criminal law from other types of civil law is the notion of personal culpability, that the mens rea has to occur with the actus reus. Commissioner O’Neill stated that one of the difficulties he has experienced as a Commissioner is the idea that drug quantity seems to play an overarching role in determining a defendant’s culpability and the harm caused to society. Commissioner O’Neill stated that while he has no doubt that quantity is an important measure of harm, drug quantity may overstate the harm caused by the particular individual before the judge or jury.

Commissioner O’Neill referenced 28 U.S.C. § 994(c)(2) which instructs the Commission to consider mitigating or aggravating circumstances that determine the seriousness of the offense. Commissioner O’Neill stated that, in his view, the Commission should consider a long range project that reassesses whether or not drug quantity has been overused as an estimate of harm and culpability. He added that it may, in fact, be the case that drug quantity has been overused. In his view, Congress is principally interested in ensuring justice for individuals and that the worst offenders are treated most harshly. Commissioner O’Neill stated that he believes many people think that the worst offenders are not necessarily those who are carrying the greatest amount of drugs, but those who actually have the worst intent and are more seriously involved in the offense. Commissioner O’Neill stated that it is incumbent upon the Commission to reassess drug quantity as a measure of culpability and harm. He suggested that this reassessment could be a component of the 15-year review, as the Commission ensures that it is following the mandates of its organic statute by punishing those most culpable with the harshest penalties.

Commissioner O’Neill concluded that, in his view, although this mitigating role cap is a crude measure of ensuring that those most culpable are punished most harshly, the amendment brings a certain amount of sanity and justice to those offenders who perhaps might not be as culpable. Commissioner O’Neill stated that he believes the amendment is imperfect, but that it is a step in the right direction and is consistent with his belief that those offenders who are most culpable deserve the harshest sentences.

Vice Chair Steer stated that while he supports this amendment, he has some reservations about the mitigating role cap provision. Before discussing his reservations about the mitigating role cap, Vice Chair Steer stated that he is very pleased that the Commission is able to include the other provisions of this amendment, specifically the one which raises the cap in the so-called "rave club"/ "crack house" offense guideline.

Vice Chair Steer discussed his reservations regarding the mitigating role cap. He stated that his comfort level with the amendment would have been greater if the cap were at level 32, which is what is now used as equivalent to the 10 year mandatory minimum. He added that he preferred level 32, because the previous consideration of level 30 had been in conjunction with other enhancements that might sometimes apply, particularly prior drug convictions and violence. These enhancements, however, are not part of this particular amendment. Vice Chair Steer stated that if the Commission ever adds these enhancements, and he hopes it does, then there will be differences in the effective dates of the amendments. He stated that this difference in effective date will hinder the desired interaction of these provisions because of the ex poste facto clause.

Vice Chair Steer stated that his additional hesitancy regarding the mitigating role provision is rather political. He stated that the Commission is anxious to do something on the crack cocaine issue and convince Congress to modify the statutory penalties for crack cocaine. Vice Chair Steer stated that there is a likelihood, however, that the mitigating role cap may engender some opposition in Congress and perhaps with the Department of Justice. Vice Chair Steer said that he questions whether the Commission will further the larger goal by adopting this provision.

With that said, Vice Chair Steer stated that he would vote for the amendment because it is the right thing to do. He stated that his judge colleagues who handle drug cases have a more direct feel for this issue and he would have to rely on their experiences. Vice Chair Steer added that years ago, his own feelings began to be colored when the Sentencing Institute sponsored visits to Federal prisons where he met offenders who were in prison for 20, 25, or 30 years for offense behavior that might have involved a fairly large quantity of drugs — crack, or sometimes other drugs. Vice Chair Steer stated that it was very clear that some of these offenders were mitigating role defendants, yet their sentences were very long. Vice Chair Steer said that this started his thinking on the issue and his questioning the benefit of sentencing by this particular approach. Because he believes it is time to move on the issue and for the reasons just stated, Vice Chair Steer said that he would support the amendment.

Vice Chair Sessions spoke of another benefit of this particular amendment, the benefit to the Commission itself. He stated that when the current Commission first started, and this was obviously after a controversial period in the Commission’s history, he met with members of the United States Senate. Vice Chair Sessions stated that he remembers the comment made by two senators that the Commission should try to arrive at a consensus because then its voice would be heard much more clearly than if there is a significant difference of opinion.

Vice Chair Sessions stated that reaching a consensus is, at times, a difficult process because of the convergence of the Commissioners’ seven different approaches to life and sentencing guideline issues. He added that the process of reaching a consensus is important, and once this position has been reached Commissioners are bound to advocate that position. Vice Chair Sessions stated that as a result of reaching a consensus on these drug amendments and policy considerations, the Commission will be a much stronger institution.

Chair Murphy then called for a voice vote. The motion to promulgate the miscellaneous drug amendments, effective November 1, 2002, and to authorize staff to make technical and clarifying changes passed unanimously.

Mr. Tetzlaff then inquired as to whether a motion for retroactivity would be made at this juncture. No motion was made, with Chair Murphy noting that retroactivity could be considered at a later time.

Cocaine Sentencing Policy

Chair Murphy then discussed the other agenda item related to drugs — cocaine sentencing policy. She stated that the Commission put this on its agenda during planning meetings in May and June 2001. Chair Murphy said that this was placed on the agenda because the commissioners, staff, and many others have been concerned about whether there should be changes made to federal cocaine sentencing policy.

Chair Murphy noted that there are many persons who have criticized the existing policy as too quantity driven, but also as creating an unfair disparity in sentencing crack cocaine defendants as opposed to defendants convicted of powder cocaine offenses. She added that it seemed like a good opportunity for the Commission to consider this subject because the Commission was aware that there was interest in Congress on this issue. Chair Murphy stated that the Commission also believed that there was new information on the impact of trafficking in crack and trafficking in powder that made consideration of federal cocaine sentencing policy especially timely.

Chair Murphy stated that the Commission has been working throughout the amendment cycle to develop its position and determine how best to proceed regarding the issue. She said that the commissioners and staff have worked very hard on this issue and believe it is a very important area. Chair Murphy stated that, consistent with the Commission’s governing statute, it had published notice of its interest in crack and powder sentencing and had received significant feedback from a variety of outside groups.

The Commission also hosted public hearings in February and March and heard some very significant testimony from individuals and groups. The Commission received testimony from scientists as well as from members of the law enforcement community. Chair Murphy stated that in March, the Department of Justice testified regarding its position as to cocaine sentencing policy. The Commission also received testimony from its long standing advisory groups, the Probation Officers Advisory Group and the Practitioners Advisory Group. Chair Murphy stated that a number of other groups and persons had offered input on cocaine sentencing policy, including the Criminal Law Committee of the Judicial Conference. She stated that the Commission had received a letter from Senators Leahy and Hatch asking the Commission to report to Congress on whether improvements could be made to cocaine sentencing policy and what those improvements should be. The letter also asked for information on specific areas regarding new trafficking data and scientific data on cocaine.

Chair Murphy stated that the Commission has been simultaneously considering a possible amendment in this area and preparing a draft report to Congress. She added that the Commission is aware of legislation related to cocaine sentencing that has been introduced by Senators Sessions and Hatch. A number of commissioners also have conferred with congressional sponsors and staff about the proposal and various options the Commission has been considering.

Chair Murphy added that the Commission has a wealth of data available related to every sentencing of every federal defendant who appears in the United States courts. The Commission also has research staff who have been working very hard to develop data about defendants who have been sentenced for drug offenses in order to ascertain crack and powder trafficking patterns and the nature of the drug markets. Chair Murphy stated that there is evidence that the crack markets have matured and are not characterized by as much violence and other alarming features that were present at the time the legislation was originally passed. Additionally, there is evidence that some of the fears about the crack baby syndrome have not been borne out by scientific investigation. Chair Murphy stated that the Commission believes there is significant new information both as to the nature of trafficking in and the effects of crack cocaine.

Chair Murphy indicated that the Commission’s approach to the issue of cocaine sentencing policy is complicated by the mandatory minimum sentencing statutes, which Congress controls. The Sentencing Reform Act, which established the Sentencing Commission, delineates the responsibilities and powers given to the Commission. Specifically, the Commission was given the ability to promulgate amendments that will become effective in the absence of congressional action within a six month period. Chair Murphy stated that Congress also gave the Commission the responsibility and duty to advise it on federal criminal policy, and particularly, sentencing policy. In considering the appropriate approach regarding cocaine sentencing policy, Chair Murphy stated that the Commission has had to determine which of these two statutory responsibilities to exercise in going forward.

Chair Murphy discussed some of the reasons in favor of moving forward with an amendment at this point, stating that this would be an improvement that could be made immediately with respect to crack sentencing policy. She stated that an amendment, however, would create disparity because it would separate those defendants who are not subject to mandatory minimum penalties from those who are. Chair Murphy stated that the Commission’s overriding concern has been to select the approach that would have the best chance of effecting the desired change in cocaine sentencing policy which can only be accomplished with the cooperation of Congress.

Chair Murphy stated that the commissioners had asked her to express their unanimous decision that the best approach at this time is to concentrate on submitting the requested report to Congress on cocaine sentencing policy and to make specific recommendations in the report. She stated that someone suggested the Commission could bring either light or heat to this issue, and it has decided that it can do best by bringing light at this point.

Chair Murphy stated that the Commission hopes to have the report ready by mid May. The commissioners are in agreement on the components that will be in the report. First, the Commission does not believe that there is a need to increase powder penalties. Chair Murphy stated that there has not been a case made that powder sentences are too low. Chair Murphy stated that the Commission’s recommendation will include a change in the crack trigger amount to reflect a mid level trafficker in order to carry out Congress’s goal behind the mandatory minimum penalty structure. She stated that the recommendation also will include a combination of sentencing enhancements designed to increase penalties for more serious offenders.

Chair Murphy stated that while the Commission has not yet worked out all of the details, the commissioners are in agreement that the trigger amount should be at least 25 grams, as opposed to the current five gram trigger for the mandatory minimum of five years. She stated that this reflects the Commission’s belief that this amount will target mid level traffickers. Chair Murphy stated that the Commission also believes that enhancements for specific offense characteristics such as violence, use of firearms, and use of protected locations or protected individuals will effectively target the more egregious offenders without focusing entirely on drug quantity.

Chair Murphy stated that the Commission has also discussed the societal harm for particular drug types, and the relative harm of crack when compared with other drugs. Chair Murphy stated that last year, the Commission similarly compared ecstasy to other harmful drugs. She said that the Commission’s report to Congress will reflect an assessment of the societal harm of cocaine relative to other drug types.

Chair Murphy stated that the Commission believes it has a real opportunity to work with Congress to effectuate these desired changes and that its report will receive careful attention from the other branches of government. She said that because the Commission is an independent agency within the judicial branch, it is important to work with other branches of government. Chair Murphy stated that the Commission believes the report will generate hearings and opportunity for public involvement.

On behalf of the Commission, Chair Murphy thanked Congress, the Administration, and the public for their input, comment, and testimony. She concluded by stating that the Commission is resolved to continue this effort and that the Commission needs the public’s continued interest in this subject to make its recommendations as effective as possible. Chair Murphy then opened the floor to other commissioners for comment.

Vice Chair Castillo stated that this decision to send a recommendation and report to Congress was in some ways an easy decision and in other ways the hardest decision to make. He stated that first and foremost, he believes the Commission needs a constructive and honest dialogue with Congress and all other participants in this process. Vice Chair Castillo stated that the Commission will proceed with this report, making recommendations on this difficult issue. He stated that Congress and the public will read the report and its recommendations carefully.

Vice Chair Castillo indicated that this issue became a political maze which the Commission has struggled with for too many years. He stated that the Commission concluded, in no uncertain terms, that the one hundred-to-one differential is not valid or supportable. Vice Chair Castillo added that this view is nearly unanimously shared by all participants in the criminal justice system, including federal judges, U.S. Probation officers, and front-line law enforcement officers who put their lives on the line in service for the country.

Vice Chair Castillo stated that this is why he found the Department of Justice’s position on cocaine sentencing policy particularly disappointing. Vice Chair Castillo stated that he intends to engage in a constructive dialogue with the Department of Justice, and hopes that they evaluate the Commission’s report as the Commission evaluated their report — without emotion, without ad hominem attacks, and without getting distracted from the issue.

Vice Chair Castillo stated that two facts presented in the Department’s report were particularly noteworthy. First, controlling for like amounts of cocaine, in 2000, crack defendants convicted of trafficking in less than 25 grams of crack received an average sentence that was 4.8 times longer than the sentence received by an equivalent powder cocaine defendant. Vice Chair Castillo stated that this means that crack defendants will be sentenced to 4.8 years for every one year that a powder defendant receives. He said that this is one of the worst differentials the Department of Justice reported, and is only exceeded by the differential for defendants with the lowest criminal history category. Vice Chair Castillo stated that the ratio for the average crack and powder sentences for the lowest amount of drugs is 8.3 to one. That is, for every one year served by a powder defendant in this category, a similarly situated crack defendant serves 8.3 years.

Vice Chair Castillo stated that he believes this is precisely where our country can and should do better. He said that the issue is not about equalizing penalties, nor is it about a wholesale reduction in penalties, or about racism. Vice Chair Castillo suggested that people very carefully read Professor Randall Kennedy’s book, "Race, Crime and the Law," which discusses this very issue. Vice Chair Castillo stated that he thinks that injecting race into this difficult issue sends it spiraling along the wrong track.

Vice Chair Castillo stated that cocaine sentencing policy is also not about terrorism. He stated that this type of emotional issue should not be injected into the issue. Vice Chair Castillo said that crack versus powder cocaine sentencing is a domestic issue, and the transformation of powder cocaine into crack cocaine does not directly relate to terrorism.

Vice Chair Castillo stated that cocaine sentencing policy is fundamentally a human issue. He said that there are human faces in jail today who should be sentenced fairly. Vice Chair Castillo stated that he does not intend to minimize the perception of racism, but that he believes the Commission should be clear that this is not about racism. Vice Chair Castillo stated that it is also a resource issue because these penalties are not justified by current data; thus, resources could be better utilized.

Vice Chair Castillo stated that he hopes people will study the report. He noted that there will be some who question why the Commission did not pass an amendment to crack penalties during this amendment cycle. Vice Chair Castillo stated that he believes in the relationship the Commission has with Congress and this is why he has reluctantly concluded to support a recommendation to Congress as opposed to an amendment to the guidelines.

Vice Chair Castillo stated that his belief in Congress will be vindicated once they see the Commission’s report. He said that the recommendation is not about a wholesale reduction in penalties, only moderate reductions where appropriate. He added that he hopes all parties interested in this issue will assist the Commission in engaging in a constructive dialogue with Congress. Vice Chair Castillo stated that he hopes history will judge the Commission’s decision to make a recommendation to Congress as the right choice. He stated that he is mindful that even the membership of the Commission might change as a result of this decision and he hopes that does not happen.

Vice Chair Castillo stated that he concluded that we have to have faith in our system of government and that because of the relationship between the guidelines and mandatory minimum statutes, this is a problem that needs to be solved by Congress. He concluded that passing an amendment at this juncture would have been a mistake, and so he joins in making recommendations to Congress.

Commissioner Kendall stated that he also hopes that Congress will resolve this issue. He agreed that the prudent thing to do is to recommend action to Congress. Commissioner Kendall stated that this is why he supports sending a report to Congress, rather than an amendment at this point.

Commissioner Kendall stated, however, that he would like to remind everyone that justice delayed is justice denied; if one believes there is an injustice in this area, the longer the delay in curing the injustice, the longer there is a problem.

Commissioner Kendall added that he agrees that there is no credible evidence that powder penalties should be raised. He also agreed that crack cocaine is a more serious drug than powder cocaine. He stated that he has serious doubts that crack cocaine is one hundred times more serious than powder. Commissioner Kendall stated that he agreed with Commissioner O’Neill’s assertion that while quantity is a factor, quantity driven drug penalties are not the best way to capture moral culpability and that other aggravating factors should receive more emphasis.

Commissioner Kendall stated that some commissioners believe strongly that rather than picking some ratio tied to the mid-level dealer, the better approach might be to benchmark crack penalties to other serious drugs that cause similar societal harms such as heroin and methamphetamine.

Ex-Officio Commissioner Reilly stated that he concurred with what everyone had said. He spoke to commend staff because one of the most difficult things about Government service is the ability to get people’s attention and to get policymakers’ attention about what needs to be done.

Ex-Officio Commissioner Reilly stated that in 1995, the Commission thought it had the attention of Congress and actually did. Unfortunately, Congress did not agree with what the Commission did in 1995. He stated that he believes that by virtue of the staff and input from public testimony and comments, the Commission again has the attention of Congress. He added that the fact that thirteen members of the House of Representatives, two members of the United States Senate, and probably many others are willing to join in trying to correct the inequities of the current penalty structure indicates that the Commission has achieved something fundamentally important to the legislative process: getting the attention of Congress regarding this issue.

Ex-Officio Commissioner Reilly stated that working with Congress on cocaine sentencing policy will be critical in terms of achieving a positive change and will accomplish real justice. He commended Chair Murphy and Vice Chairs Sessions and Steer for their work with members of Congress. He stated that the issue now becomes a lobbying effort on the part of persons interested in the issue to convince members of Congress to correct the current structure because of new information. Ex-Officio Commissioner Reilly stated that he believes the report will be a valuable tool for Congress and that they will respond accordingly and take the action necessary to correct the current inequities. He added that the staff has done a marvelous job in putting together this material.

Chair Murphy thanked everyone for their helpful remarks and turned to General Counsel Tetzlaff regarding the career offender amendment.

Career Offender

Mr. Tetzlaff introduced the career offender amendment. This amendment is intended to comply with the statutory directive in 28 U.S.C. § 994(h) by providing a guideline sentence at or near the statutory maximum of life imprisonment for cases in which certain serious firearm offenses establish the defendant as a career offender. This amendment provides special rules in §§4B1.1 (Career Offender) and 5G1.2 (Sentencing on Multiple Counts of Conviction) for determining and imposing a guideline sentence in a case in which the defendant is convicted of an offense under 18 U.S.C. § 924(c) or § 929(a) and, as a result of that conviction, is determined to be a career offender under §§4B1.1 and 4B1.2 (Definitions of Terms Used in Section 4B1.1). The amendment supplements Amendment 600 (effective November 1, 2000) in which the Commission first addressed implementation of the statutory changes in penalties for 18 U.S.C. §§ 924(c) and 929(a) offenses made by the Act to Throttle the Criminal Use of Guns, Pub. L. 105–386. At that time, the Commission deferred addressing the more complicated issues of whether convictions under 18 U.S.C. §§ 924(c) and 929(a) can qualify as instant offenses for purposes of §4B1.1, and if they do so qualify, how the sentence would be imposed. Promulgation of this amendment reflects the Commission’s decision that the amendment, while somewhat complex, is necessary to comply appropriately with 28 U.S.C. § 994(h).

Operationally, this amendment achieves two goals. First, it permits 18 U.S.C. § 924(c) or § 929(a) offenses, whether as the instant or prior offense of conviction, to qualify for career offender purposes. Second, it ensures that, in a case in which such an instant offense establishes the defendant as a career offender, the resulting guideline sentence is determined under §4B1.1 using a count of conviction that has a statutory maximum of life imprisonment. The special rule necessarily is somewhat more complex because of the need to address certain anomalies that infrequently would occur in the absence of such a rule, i.e., that a very serious offender could receive a lower sentence by virtue of the application of §4B1.1 than that which would otherwise be received by imposing the statutorily required minimum sentence consecutively to the otherwise applicable guideline range.

Mr. Tetzlaff stated that a motion would be in order to promulgate the proposed amendment with an effective date of November 1, 2002, and to authorize staff to make technical and conforming changes.

Vice Chair Steer moved to promulgate the amendment. Seconded by Vice Chair Castillo.

Vice Chair Steer spoke in support of the amendment. He stated that, in his view, the thrust of the proposal is to ensure compliance with a directive in the Commission’s organic statute, 28 U.S.C. § 994(h), as it has been construed by the Supreme Court in LaBonte. Vice Chair Steer said that he would address several aspects of the proposed amendment.

Vice Chair Steer first discussed the relative complexity of the proposed amendment. He stated the amendment is not something that anyone would embrace as a goal in and of itself, but the complexity is inherent in the conflict between a statutory mandatory minimum consecutive sentence and the sentencing guidelines approach of using percentage increases. Vice Chair Seer stated that, in his view, given these two competing systems, total avoidance of complexity is not possible. He said that the Commission can only try to make this provision as understandable as possible and minimize the complications.

Vice Chair Steer stated that the Commission had accomplished this by working with outside groups, particularly the Probation Officers Advisory Group (POAG), and with the help of a dedicated staff. He said that the POAG has been very helpful in reviewing various iterations of the proposal and suggesting improvements. Vice Chair Steer thanked staff, particularly the drafting staff, for their hard work. He added that Ms. Montgomery and Mr. Purdy have also worked very hard to make the provision as clear as possible.

Vice Chair Steer stated that, in some ways, this proposal might be considered rather simple in terms of the way one would apply the guidelines for a 18 U.S.C. § 924(c) offense. He said that one does not need to go through the usual process of determining an offense level, specific offense characteristics, and Chapter Three adjustments. Vice Chair Steer stated that he wanted to underscore that the Commission is not broadening the scope of crimes of violence or controlled substance offenses. The 18 U.S.C. § 924(c) offense would only be career offender eligible if the underlying offense of conviction is a qualifying crime of violence or a controlled substance offense, as the guideline usually operates.

Vice Chair Steer stated that when the 18 U.S.C. § 924(c) offense is career offender eligible, the sentencing court basically fast forwards to this new rule and then applies acceptance of responsibility where appropriate. He said that the sentencing court basically makes a comparison between two ranges: one of the ranges is taken from a new career offender table specifically designed for cases involving 18 U.S.C. § 924(c) offenses, and the other range is taken from the existing career offender table for multiple count cases as if 18 U.S.C. § 924(c) did not apply (that guideline range plus the 18 U.S.C. § 924(c) conviction).

Vice Chair Steer stated that this range comparison is not complicated. It is basically picking whatever range has the higher minimum, taking a point within it and then allocating the sentence among the counts. He added that if there is a multiple 18 U.S.C. § 924(c) conviction involved, one might have to do some basic math, but this is grade school arithmetic and it is not unduly complicated.

Vice Chair Steer then discussed the statutory mandate. He said that the mandate is part of the Commission’s organic Act which leaves some definitional tasks to the Commission but is very clear. He stated that the Commission had long decided that an 18 U.S.C. § 924(c) conviction, under the circumstances he described, is a qualifying offense for career offender purposes. Vice Chair Steer stated that the Commission had not faced it as the instant offense before. He said that the statutory mandate was very clear in instructing the Commission that when a defendant is a career offender, the guideline range must be at or near the statutory maximum.

Vice Chair Steer illustrated the possible relevance of the LaBonte decision with hypothetical situations. By way of example, he asked those present to imagine a situation in which there is an 18 U.S.C. § 924(c) offense in conjunction with a drug offense that has a 10 year or 20 year maximum. He said that under the current rules, the Commission is effectively saying that a sentence as low as 12 ½ years meets the statutory mandate of placing the sentence at or near life imprisonment. Vice Chair Steer stated that this is not a reasonable interpretation of the instruction of LaBonte. He said that the lesson of LaBonte is that the Commission cannot use concerns about how prosecutorial discretion might be exercised as a reason to not comply with the statutory mandate.

Vice Chair Steer concluded by stating that he always works to avoid complexity, but when the statutory directive is clear, then the Commission does not have the option to not comply due to complexity. He said that in that circumstance, the Commission should do as it has done here and try to make the provision as simple and understandable as possible. He added that he would be willing to join anyone in trying to convince Congress to change the statute.

Commissioner O’Neill commented that he considered this provision with trepidation. He said that while this is not a perfect guideline amendment, after having reread the amendment, the Commission’s organic statute, and the LaBonte decision, he determined he would support the amendment because it is what was directed by Congress in 28 U.S.C. § 994(h). Commissioner O’Neill stated that although the fix is imperfect, the complexity is a result of the statutory directive and how it works with 18 U.S.C. §§ 924(c) and 929(a).

Commissioner O’Neill commended staff and Vice Chair Steer for having worked through what appears to be a knotty problem in coming up with a reasonable application of the statutory mandate. He added that the Commission is in the process of establishing a great dataset for recidivism. Commissioner O’Neill stated he hopes that when the Commission reconsiders criminal history categories, it also looks at the impact of recidivism and considers returning to the career offender guideline in that context.

Vice Chair Sessions stated that when he first came to the Commission, he received advice from many judges who told him that the guidelines are too long, too complex, and in need of simplification. He said that the Commission has previously engaged in efforts to simplify the guidelines. Vice Chair Sessions stated that this particular amendment is adding a new level of complexity that is going to be extraordinarily difficult for people to follow. He said that he appreciates that perhaps when one gets into the guideline itself, the sentence determination might be simple math, but getting into the guideline is going to take real effort.

Vice Chair Sessions said that while he enjoys listening to Rusty Burress train guideline users, if this guideline passes, 90% of Mr. Burress’s lecture will relate to 18 U.S.C. § 924(c), and that is not what people should be focused on. He said that the Commission is going to end up spending all of its time training people on a guideline that affects 160 defendants per year. Vice Chair Sessions queried whether it is necessary to get so detailed and complex over such a small guideline issue. For these reasons, Vice Chair Sessions stated that he would vote against the amendment.

Vice Chair Castillo stated that he agrees with Commissioner O’Neill and Vice Chair Steer that the congressional directive and the LaBonte decision require the Commission to get into this complex area. He said that the Commission could determine that it is too complex, but it has not done that with other guidelines.

Vice Chair Castillo commended Vice Chair Steer for tackling this provision along with the help of staff and the assistance of probation officers. He added that he agrees with Commissioner O’Neill that a complete reconsideration of the career offender guideline is perhaps in order at a later date, especially if there are problems with this guideline. Vice Chair Castillo stated that for now, he believes the provision is as good as possible and that he would support the amendment.

Chair Murphy then asked Staff Director McGrath to call for a voice vote on the motion to promulgate the amendment with an effective date of November 1, 2002, and to authorize staff to make technical and conforming changes.

Vice Chair Castillo voted yes. Vice Chair Sessions voted no. Vice Chair Steer voted yes. Commissioner Johnson voted no. Commissioner Kendall voted no. Commissioner O’Neill voted yes. Chair Murphy voted yes.
The motion passed by a vote of four to three.

Sentencing Alternatives

Mr. Tetzlaff introduced the proposed amendment regarding alternatives to imprisonment, stating that the proposal seeks to increase sentencing alternatives in Zone C of the sentencing table in Chapter Five, Part A. There were three options for consideration.

Option One would amend the sentencing table by combining Zones B and C, thereby providing offenders at offense levels 11 and 12 the sentencing options currently available in Zone B.

Option Two also increases sentencing alternatives in Zone C but differs from Option One in that it does not combine Zones B and C; and it limits the use of home detention for defendants in which the minimum of the guideline range is at least eight months — like the current Zone C.

Option Three increases the sentencing alternatives in Zone C of the sentencing table similarly to Option One but limits the expansion of the sentencing options available in Zone B to offenders in Criminal History Category One of Zone C of the sentencing table.

Mr. Tetzlaff stated that a motion would be in order to promulgate the proposed amendment with an effective date of November 1, 2002, and to authorize staff to make technical and conforming changes.

Commissioner Kendall stated that he would make a motion. First, he discussed Options One and Three, setting aside Option Two. Commissioner Kendall stated that the first question is to consider what the proposed amendment accomplishes. He said that Options One and Three are similar, but the difference exists in the scope based on criminal history category. Commissioner Kendall stated that Option One was the less restrictive of the two and was favored by the Criminal Law Committee and the POAG.

Commissioner Kendall stated that his comments were being made to articulate why he is moving the amendment. He said that contrary to statements by those opposed to the amendment, the proposed options do not lower penalties for anyone; rather, they provide the sentencing judge with a tool to have a defendant serve his or her sentence some place other than prison, such as in a halfway house or home confinement. Commissioner Kendall stated that the sentence imposed is still being served. Furthermore, at levels 12 and 13, only defendants whose sentences are 16 months or less would be affected. He added that the judge can still put low-level tax cheats and fraudsters in prison if the evidence so warrants.

Commissioner Kendall stated that statistics show that more than 50 percent of those currently in Zone C do not receive a split sentence, but serve the entire sentence in prison without the benefits of Zone C with regard to a split sentence. Instead of a split sentence, the option for the judge is either home confinement or a halfway house or some other community based facility. Commissioner Kendall stated that the proposal will allow judges to make a case-by-case determination on the confinement setting for low level offenders.

Commissioner Kendall stated that this would facilitate, through electronic monitoring or through community confinement centers, the defendant’s continued employment and allow him to support dependants and make restitution when applicable. The amendment also would free up a prison bed for someone who is a more serious offender.

Commissioner Kendall stated that he would move for promulgation of Option Three because it is more restrictive. He stated that when the Commission began this debate a couple of years ago, the purpose was to provide some alternative to prison for nonviolent first time offenders. He said that Option One would include some individuals who are not first time offenders and is less restrictive. Commissioner Kendall stated that he realized that there has been some debate about delaying this proposal until after the recidivism study has been completed. He added that he understands this concern, but the Commission has the ability to come back and revisit the issue.

Commissioner Kendall urged the Commission to vote on this proposal based on the merits. He moved for adoption of Option Three. Seconded by Commissioner Johnson.

Vice Chair Castillo stated that he reluctantly determined that he would not support this amendment. He stated that while he commends Commissioner Kendall for bringing some needed flexibility to low level, nonviolent, first time offenders, he feels that the Commission should wait on this proposal until they have seen the data from white collar offenders sentenced under the 2001 economic crime package amendments.

Vice Chair Castillo stated that this concern, coupled with the Department of Justice’s concern that this proposal will provide a benefit to many antitrust, tax, and other white collar offenders, led him to conclude that the best approach would be to study the area further in connection with the recidivism study and a complete reconsideration of criminal history. Vice Chair Castillo stated that although he was committed to returning to the issue in conjunction with raising penalties for white collar offenses, he would not support the amendment for the foregoing reasons.

Commissioner O’Neill stated that he also intended to vote no on this proposal. He stated that the Commission is in the process of conducting the recidivism study which will allow the Commission to carefully examine criminal history categories and make a determination as to whether or not the categories need to be adjusted.

He said that he voted in part for the career offender amendment because he believed that the Commission had to accomplish a particular statutory mandate. Commissioner O’Neill stated that he believes the Commission has a similar obligation to carry out the instruction provided by 28 U.S.C. § 994(j), which requires the Commission to ensure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or otherwise serious offense. Commissioner O’Neill stated that he considers this language as binding as that in 28 U.S.C. § 994(h). For this reason, he believes it is important to consider sentencing alternatives as a piece of a complete review of criminal history categories and then treat first time nonviolent offenders in a manner different from more serious offenders. Commissioner O’Neill stated that, in his view, the best and most appropriate way to accomplish this is in concert with the recidivism study. This is one of the reasons why he is strongly in favor of reconsidering criminal history categories during the next amendment cycle.

Commissioner O’Neill echoed Vice Chair Castillo’s concern that it is important not to inadvertently give white collar criminals a benefit without first knowing the impact of last year’s economic crime package. He stated that he appreciated the Department of Justice’s providing information with respect to the potential impact on white collar criminals. He added that he believes that there is a fair amount of agreement that among the most morally culpable offenders are those who bring a criminal plan or scheme to fruition. Commissioner O’Neill stated that the Sentencing Reform Act was designed, in part, to provide a deterrent for those individuals who have great moral culpability. He noted that white collar offenders have great moral culpability and also have more impact on the economy than defendants who traditionally are sentenced more harshly.

For these reasons, Commissioner O’Neill stated that he would not support the amendment. He added that it is incumbent upon the Commission to review this area.

Vice Chair Sessions stated that he agreed with the last statement made by Commissioner O’Neill. He said that this is a very difficult area for a number of reasons. Vice Chair Sessions stated that he is also particularly sensitive to the concerns of the Treasury Department and the Tax Division. He said that the proposal is not intended to highlight a break for persons who engage in white collar crime that involves a lot of planning, forethought, and in his view, significant culpability.

Vice Chair Sessions stated that he thinks this issue will be readdressed during the next amendment cycle, and he would like to work with the Treasury Department to address their concerns. He added that he also believes that there is a need to expand judicial discretion for sentencing low level offenders. To that end, he would like to work with the Commissioners and with the Department of Justice to resolve all concerns so that judicial discretion may be advanced for low level offenders.

Chair Murphy stated that this proposal was originally part of a two year cycle for criminal history. The Commission originally thought this could be separated, but there have been some unintended consequences. She stated that criminal history would be considered again next year. For these reasons, she intended to vote no.

Chair Murphy asked the Staff Director to call the roll for a voice vote on Commissioner Kendall’s motion to promulgate Option Three of the proposed amendment concerning sentencing alternatives.

Vice Chair Castillo voted no. Vice Chair Sessions voted no. Vice Chair Steer voted no. Commissioner Johnson voted yes. Commissioner Kendall voted yes. Commissioner O’Neill voted no. Chair Murphy voted no.

The motion failed by a vote of five to two.

Acceptance of Responsibility

Mr. Tetzlaff introduced the proposed amendment regarding acceptance of responsibility. The amendment is proposed in two parts. Part one proposes to amend §3E1.1 (Acceptance of Responsibility) by deleting subsection (b)(1), which provides an additional one level reduction if the defendant timely provides complete information to the Government concerning his own involvement in the offense.

Part two of the proposed amendment presents two options to resolve a circuit conflict regarding whether a court may deny an acceptance of responsibility reduction when the defendant commits a new offense unrelated to the offense of conviction. Option one proposes to amend the commentary to include the commission of any other criminal conduct while pending trial or sentencing on the instant offense as one of the considerations that a court may look to in determining whether to grant acceptance of responsibility. Option two makes clear that a defendant who commits additional similar criminal conduct or additional serious dissimilar criminal conduct while pending trial or sentencing on the instant offense is not ordinarily entitled to a reduction for acceptance of responsibility.

Mr. Tetzlaff stated that a motion would be in order to promulgate Part One with an effective date of November 1, 2002, and to authorize staff to make technical and conforming changes.

Vice Chair Steer moved to promulgate Part One.

Vice Chair Castillo spoke to explain why he did not believe there would be a second. He stated that he has spoken strongly against taking up this amendment at this point. Vice Chair Castillo stated that his preference is to defer consideration of this amendment. He stated that he does not believe that deleting subsection (b)(1) is appropriate. Vice Chair Castillo said that he thinks it is worthy of further study, but at this point the amendment would send the wrong message.

Vice Chair Castillo said while part of acceptance of responsibility is in fact a complete revelation on the part of the defendant to Government authorities to prevent unnecessary use of Government resources, he ultimately believes that this should be studied further. He added that with further study, he believes the Commission can bring some real solutions to the acceptance of responsibility issue including the circuit conflict issue.

Chair Murphy asked if there was a second. Hearing none, she stated that the motion failed for lack of a second.

Mr. Tetzlaff then stated that a motion would be in order to promulgate Part Two, with an effective date of November 1, 2002, and to authorize staff to make technical and conforming changes.

Commissioner Kendall moved to promulgate Option One of Part Two.

Commissioner Kendall stated that he thought this proposal would easily resolve the circuit conflict by adopting the majority view and allowing the judge to decide based on the facts of a given case whether a new offense is inconsistent with acceptance of responsibility. Commissioner Kendall mentioned the example of a defendant who is a drug addict in need of drug treatment and tests positive for drug use subsequent to the instant offense charge. He stated that this may or may not indicate acceptance of responsibility, and this proposal would allow the judge to make determinations on a case by case basis. For these reasons, Commissioner Kendall stated that he moved to promulgate Option One of Part Two.

The motion failed for lack of a second, without discussion.

Chair Murphy thanked members of the public for attending the meeting. The meeting was adjourned at 12:22 p.m.