Minutes from August 28, 2002

Minutes of the August 28, 2002
U.S. Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 10:06 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
Eric H. Jaso, Commissioner Ex-Officio
Edward F. Reilly, Commissioner Ex-Officio
Timothy McGrath, Staff Director
Charles Tetzlaff, General Counsel

Chair Murphy began the meeting by welcoming members of the public.

As the first order of business, Chair Murphy requested a motion to approve the minutes from the last public meeting, April 5, 2002. During that meeting, the Commission voted on guideline amendments to become effective November 1, 2002.

Vice Chair Castillo moved to approve the minutes from the April 5, 2002 meeting. Seconded by Commissioner O’Neill. The motion passed unanimously by voice vote.

Chair Murphy reported that members of the public may access information pertaining to the Commission’s advisory group on organizational guidelines via the Commission’s web site, www.ussc.gov. Chair Murphy stated that the advisory group has requested public comment on a number of areas and has planned a public hearing to take place in the Thurgood Marshall Federal Judiciary Building on November 14, 2002. The hearing will be comprised of one large session, followed by break out sessions on various specific issues.

Chair Murphy stated that there was a program on ABC TV prompted by the Commission’s Report to the Congress on Cocaine and Federal Sentencing Policy. It aired on Nightline on August 22, 2002. Chair Murphy reported that much of the background commentary by Ted Koppel reflected information contained in the report. Senators Leahy and Sessions were prominently featured in the program, as well as herself, Judge Terry Hatter, and Derrick Curry (who was convicted of conspiracy to deliver crack and pardoned by President Clinton and whose father testified before the Commission in 2000). Chair Murphy stated that the program was very positive and that the Commission hopes Congress will lessen the disparity between crack and powder sentences and possibly lessen its reliance on mandatory minimums.

Chair Murphy reported that many of the commissioners have been speaking to outside groups and participating in training seminars. Also, several commissioners recently visited Leavenworth Federal Penitentiary and found the visit very instructive.

Commissioner O’Neill reported that significant progress is being made with regard to the fifteen year study. He stated that this progress is a tribute to staff, considering the concurrent work generated by the Commission’s rigorous agenda.

Staff Director McGrath stated that the Commission released several publications over the summer, including the Guidelines newsletter, a bound edition of the Report to the Congress on Cocaine and Federal Sentencing Policy; and the Commission’s 2001 Annual Report and Sourcebook of Sentencing Statistics. Additionally, the September issue of the Guidelines newsletter will be available shortly. Staff Director McGrath stated that the Commission’s recent publications are available to the public free of charge on www.ussc.gov and through the Commission’s Office of Public Affairs.

Vice Chair Castillo stated that he had received many compliments from his colleagues on the Commission’s Report to the Congress on Cocaine and Federal Sentencing Policy. He commended staff on their work, stating that compliments from his colleagues are not lightly given, particularly if the subject is the federal sentencing guidelines. Vice Chair Castillo stated that he hopes members of Congress are evaluating the report and that the Commission can work with them and the Administration on this issue in the upcoming year.

Chair Murphy stated that the Report has generated a lot of interest. In issuing a report rather than a guideline amendment, the Commission hoped it would be in a better position to work with Congress. Chair Murphy said that the Commission believes this has proven to be a sound decision which will engender progress in addressing the crack/powder cocaine sentencing disparity.

Chair Murphy stated that the Commission’s list of priorities indicates a time line for submitting proposed amendments to the guidelines on May 1, 2003. The list of priorities, however, includes corporate crime and campaign finance reform issues that are under emergency amendment authority requiring a condensed time frame. Chair Murphy indicated that the Commission had recently received a letter from Ex-Officio Commissioner Jaso that discusses the Department of Justice’s sentencing concerns and suggested priorities. Because the Commission had not yet had time to review the Department of Justice’s letter and because the Commission may receive additional directives from Congress, Chair Murphy stated that the Commission may add issues to its priority list at a later date.

Chair Murphy stated that the current emergency amendment authority items on the priority list will be considered first during this amendment cycle. She stated that the Commission anticipates publishing issues for comment in November so that the Commission can vote on those issues at its January meeting. Additionally, the Commission intends to continue working on background reports for the fifteen-year review. Chair Murphy indicated that the Commission believes these reports will be helpful to the work of the Commission over time.

General Counsel Tetzlaff stated that the Commission had published its list of tentative priorities on June 21, 2002, pursuant to Rule 5.2 of the Commission’s Rules of Practice and Procedure. This publication requested public comment on the list of priorities by August 2, 2002. The Commission received public comment from the following entities: the Criminal Justice Section of the American Bar Association regarding compassionate release; the National Legal Professional Associates regarding criminal history; the Workplace Criminalistics and Defense International regarding the organizational guidelines. After review and discussion of both the public comment and tentative list of priorities, the Commission finalized its list of proposed priorities. This list includes items under emergency amendment authority generated by the Sarbanes-Oxley Act of 2002 pertaining to corporate and securities fraud. General Counsel Tetzlaff stated that a motion to publish the finalized list would be in order.

Chair Murphy stated that on the list of priorities, the Commission specified items that have been placed in a miscellaneous category which includes compassionate release. She stated that Ex-Officio Commissioner Reilly brought materials pertaining to how the U.S. Parole Commission handles compassionate release.

Ex-Officio Commissioner Reilly clarified that the U.S. Parole Commission is currently using two policies pertaining to compassionate release — one that is nationwide and one adopted since its inheritance of the District of Columbia prison population. He indicated that the D.C. policy is somewhat more extensive than that of the U.S. Parole Commission. Ex-Officio Commissioner Reilly added that the Parole Commission generally will release someone who is severely incapacitated or terminally ill with death expected within six months, provided that the individual qualified for parole consideration. In the time that he has been at the Parole Commission, he can think of only three cases that were granted release under this policy. He added that he hopes these two policies will be helpful to the Commission as it considers compassionate release.

Chair Murphy then asked if any commissioners wanted to comment on the notice of priorities.

Vice Chair Castillo indicated that he had some reservations about getting back into the issue of acceptance of responsibility but has no qualms about putting it on the notice of priorities. He stated that he will try to keep an open mind to see if there are some new data that suggest there is some fundamental problem with the guideline as it currently operates or that there is some way that particular provision can be improved.

Commissioner O’Neill stated that he had two comments. First, the more significant things on the priority list are those items under emergency amendment authority from Congress. This demonstrates, to a certain degree, the difficulty the Commission has in being able to set its own agenda in the sense that oftentimes agenda items are placed on the Commission’s plate as a result of the current political climate. Whether or not the Commission would have chosen to take up those issues, it is important to recognize the fact that no agency is truly independent. Congress has placed these issues in the Commission’s lap, so to speak, and the Commission will be as responsive as possible and act expeditiously with regard to those amendments under emergency amendment authority.

Commissioner O’Neill stated that second, the Commission is looking at criminal history again during the next two amendment cycles. He believes this is an area where the Commission is ideally suited to formulate policy. The Commission has undertaken the largest recidivism study of its kind, coding more than 6,000 cases to perform a comprehensive survey of the criminal history categories. This will allow the Commission to examine thoroughly the current criminal history rules, including rules of exclusion and inclusion and criminal history categories one and six. Commissioner O’Neill stated that this is precisely the sort of thing that the Commission is best at doing — collecting and analyzing data to help formulate policy. Commissioner O’Neill stated that he believes this is one of the principal reasons why Congress established the Commission as an independent agency. Commissioner O’Neill stated that long before this particular Commission came into being, and long after a new Commission is in place, the staff will continue to collect and analyze sentencing data to help formulate objective policy recommendations.

Vice Chair Castillo added that he agrees generally with what Commissioner O’Neill said. He recalled that at the last public meeting in April 2002, he stated he would be happy to reconsider penalties for white collar criminal offenses. Vice Chair Castillo stated that he is pleased that Congress has given the Commission authority to determine appropriate penalties for existing and new white collar criminal offenses without the imposition of mandatory minimum penalties or explicit directives such as a two or three level guidelines increase in a particular area. However, because he would like to serve Congress as effectively as possible, he expressed disappointment with the need to pass emergency amendments within a very precise time frame. Vice Chair Castillo stated that the Commission has already worked in the area of white collar criminal offenses and has also created an advisory committee on organizational sentencing guidelines. He noted that some of the work of the advisory committee overlaps with recently passed legislation. Vice Chair Castillo stated that he hopes that, in the spirit of working with Congress, it would recognize some of the work the Commission has already done and would give the Commission more realistic time frames that would allow the Commission to receive and evaluate input from the advisory group on the organizational guidelines. Vice Chair Castillo stated that he is hopeful that in the future, the Commission can arrive at the fully cooperative relationship with Congress that was originally intended.

Vice Chair Sessions spoke to commend the staff and the Commission itself for taking up such serious issues as nuclear, chemical, and biological warfare prior to September 11, before there was political pressure to do so. He noted that the Commission had revamped and dramatically increased penalties for white collar criminal offenses with high dollar amounts well in advance of the current political interest. Vice Chair Sessions stated that the Commission and staff should take great pride in this. Also, it sends a signal to Congress that this Commission takes its responsibility very seriously.

Commissioner Johnson then moved to publish the list of final priorities. Seconded by Vice Chair Steer. The motion passed unanimously by voice vote.

Chair Murphy stated that the Commission will be getting to work on its priorities and the Staff Director has set up staff assignments in all of these areas. The Commission has received some input from staff on these areas. Chair Murphy stated that the Commission has a lot of work to accomplish in the next few meetings and does not want to lose sight of any of its priorities.

Ex-Officio Commissioner Reilly mentioned that on September 11, the Parole Commission will conduct its second annual forum on the District of Columbia prison population, to take place from 1:30 to 4:30 p.m. at the Martin Luther King Public Library. The forum is open to the public and all are welcome to attend.

Ex-Officio Commissioner Jaso stated that the Attorney General wrote to the Commission the same week that the President signed the Sarbanes-Oxley Act of 2002 pledging resources and support to the Commission in order to meet the ambitious time lines set by Congress. He added that the Department of Justice has made efforts to collect suggestions and ideas as to how to best implement the Act. The Department looks forward to working cooperatively and actively with the Commission in order to give the support that the Attorney General has pledged to the Commission.

Chair Murphy added that the Attorney General has personally expressed his awareness of and appreciation for the work that the Commission previously had done in the area of corporate crime.

Vice Chair Steer stated that the public comment on the Commission’s list of priorities is available to those who would wish to review the comment. He confirmed that the Staff Director also will make the letters recently received from the Attorney General on the Sarbanes-Oxley Act and from the Department of Justice on its priority list available to members of the public.

Chair Murphy adjourned the meeting at 10:35 a.m.