Minutes from June 24, 2003

Minutes of the June 24, 2003
United States Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 4:35 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
Ricardo H. Hinojosa, Commissioner
Michael Horowitz, Commissioner
Eric H. Jaso, Commissioner Ex Officio
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel
Judith Sheon, Special Counsel
Pamela Montgomery, Director, Education and Sentencing Practice

Chair Murphy started the meeting by welcoming members of the public. She stated that the agenda for today’s meeting is not long but addresses important issues that the Commission has been discussing. Chair Murphy noted that the Commission and the Federal Bar Association cosponsored a successful National Sentencing Guidelines workshop in May in Miami Beach, Florida. She asked Pamela Montgomery to report on plans for next year’s seminar. Ms. Montgomery stated that the 13th Annual National Seminar on Federal Sentencing Guidelines will be held in Miami Beach on May 19, 2004 through May 21, 2004.

Chair Murphy announced that the Commission recently met with the Criminal Law Committee of the Judicial Conference and that several of the Commissioners attended the Second Circuit Judicial Conference. She also noted that recently there has been a substantial amount of inquiry to the Commissions’ Help-Line arising out of the PROTECT Act. She stated that the Commission has taken care to compile information on the statute to respond to the inquiries from courts around the country.

Staff Director McGrath announced that the Commission has made summer assignments regarding the policy issues that it intends to address and that an issue of the Guidelines newsletter is forthcoming.

Chair Murphy stated that the first item on the agenda was the approval of the minutes for two April 2003 meetings and one in May. She noted that the April 16, 2003 minutes are quite lengthy because at that meeting the Commission voted on the amendments that were sent to Congress on May 1, 2003. Vice Chair Castillo moved to approve the April 16, 2003 minutes and also expressed appreciation to Karen Hickey, who is leaving the staff, and commended her for her work on behalf of the Commission. Vice Chair Sessions seconded the motion. The April 16, 2003 minutes were approved unanimously.

Chair Murphy noted that the other two sets of minutes related to the same subject. At these meetings, the Commission addressed immediate matters that arose as a result of the PROTECT Act. Vice Chair Castillo moved to approve the April 29, 2003 and May 2, 2003 minutes. Seconded by Vice Chair Sessions. The minutes were approved by unanimous vote.

Chair Murphy stated that the next item on the agenda involved issues for comment regarding the PROTECT Act. She asked General Counsel Tetzlaff to brief the Commission on this matter.

General Counsel Tetzlaff stated that under § 401(m) of the PROTECT Act, Congress gave the Commission a directive with a deadline of not later than 180 days to review the grounds of downward departures that are authorized by the Sentencing Guidelines, to promulgate pursuant to § 994 of title 28, United States Code, appropriate amendments to ensure that the incidence of downward departures is substantially reduced, to promulgate appropriate policy statements authorizing a downward departure pursuant to an early disposition program, and to promulgate any other conforming amendments as appropriate. General Counsel Tetzlaff stated that the Commission has developed a number of issues for comment regarding the directive. He stated that a motion to publish these issues for comment would be appropriate with an August 1, 2003 deadline for receipt of public comment, and to authorize staff to make technical and conforming changes as needed. He noted that the Commission’s Rules of Practice and Procedure suggest a 60 day response period to the extent practicable. However, given the short time frame Congress has given for this directive, General Counsel Tetzlaff suggested that an August 1, 2003 date would be appropriate and practicable in this case, even though that is shorter than the suggested 60 day period.

Vice Chair Castillo moved to publish the issues for comment as described by General Counsel Tetzlaff and to authorize staff to make technical and conforming changes. Seconded by Commissioner Horowitz.

Chair Murphy stated that in this proposal the Commission is focusing on the specific issues that Congress requested be analyzed but also invites other suggestions that might be considered in response to the directive. The Commission is genuinely interested in receiving input from the public but it does not have long to respond to Congress on this complicated matter.

Vice Chair Castillo seconded Chair Murphy’s comments and added that the Commission has crafted a relatively open issue for comment in order to elicit and examine other approaches the interested public might suggest with respect to the complex issues of downward departures and other topics addressed in the congressional directive. Because of the relatively short time frame set by Congress, we request input from the public by August 1, 2003.

The motion to publish issues for comment regarding the PROTECT Act with an August 1, 2003 deadline, and to authorize staff to make technical and conforming changes, passed unanimously.

Chair Murphy stated that the other item on the agenda is the Commission’s list of proposed priorities for this amendment cycle. She mentioned that the Commission publishes its notice of proposed priorities so that people can respond regarding what they think is interesting, what they think the Commission should work on, and in what way the Commission should approach its priorities. Chair Murphy noted that this is usually done early in the year, but that the Commission may publish proposed priorities throughout its amendment cycle. For example, the Commission has issued a notice of priorities in January and completed consideration of those items during the same amendment cycle. Chair Murphy asked General Counsel Tetzlaff to brief the Commission on the notice of proposed priorities.

General Counsel Tetzlaff explained that in accordance with Rule 5.2 of the Rules of Practice and Procedure, the Commission publishes annually in the Federal Register and makes available to the public a notice of tentative priorities for future Commission inquiry and possible action. The Commission has developed a list of thirteen proposed priorities. General Counsel Tetzlaff stated that a motion would be in order to publish those proposed priorities for comment, stipulating an August 1, 2003 deadline for comment in accordance with the Commission’s prior vote, and also authorizing staff of the Commission to make technical and conforming changes if needed.

Chair Murphy asked General Counsel Tetzlaff to announce the number of votes required to approve the priorities for publication under the Rules of Practice and Procedure. General Counsel Tetzlaff replied that the Rules require three votes for publication.

Chair Murphy noted that the Commission has spent considerable time considering priorities. She indicated that it is always difficult to select proposed priorities from everything the Commission is interested in. She expressed the Commission’s interest in receiving feedback from any groups concerned with the Federal Sentencing Guidelines.

Commissioner Hinojosa moved to publish the proposed priorities. Commissioner Horowitz seconded the motion.

Vice Chair Sessions moved to strike paragraph 12 from the proposed priorities. This paragraph foresees review of the §2D1.1(a)(3) limitation on the base offense level, otherwise known as the mitigating role cap. Vice Chair Sessions explained that because the issue has been considered by the Commission for approximately a decade and was resolved relatively recently by a unanimous vote, he does not believe that it should be included on the list. Vice Chair Castillo seconded the motion to strike. He noted that the mitigating role cap was incorporated at one point in a proposal of Senator Sessions and has been extensively debated before the Commission. Vice Chair Castillo observed that there has not been a strong showing that the Commission miscalculated the effect of the provision.

Chair Murphy requested that Staff Director McGrath call the roll on the motion to strike paragraph 12 from the proposed list of priorities. Vice Chair Castillo voted yes. Vice Chair Sessions voted yes. Commissioner Hinojosa voted no. Commissioner Horowitz voted no. Chair Murphy voted no. The motion did not pass.

Staff Director McGrath then called the roll on the motion to publish the proposed list of priorities. Vice Chair Castillo voted yes, subject to his earlier comments. Vice Chair Sessions voted yes, subject to his earlier comments. Commissioner Hinojosa voted yes. Commissioner Horowitz voted yes. Chair Murphy voted yes. The motion passed by a unanimous vote.

Chair Murphy expressed her hope that the public will offer its assistance and submit public comment in the short time that is available.

Chair Murphy adjourned the meeting at 4:52 p.m.