Minutes from October 8, 2003

Minutes of the October 8, 2003
United States Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 10:15 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
Ricardo H. Hinojosa, Commissioner
Michael E. Horowitz, Commissioner
Michael E. O’Neill, Commissioner
Eric H. Jaso, Ex Officio Commissioner
Edward F. Reilly, Jr., Ex Officio Commissioner
Timothy B. McGrath, Staff Director
Charles Tetzlaff, General Counsel
Judy Sheon, Special Counsel

Chair Murphy stated that she had only a brief report. She reported that on the previous day the Commission held a public meeting with the Organizational Guidelines Ad Hoc Advisory Group. She noted that the group produced an excellent report based on its 18 month study of the guidelines in Chapter Eight (Sentencing of Organizations). All 15 members of the group attended the meeting. She announced that the group’s report was available on the Commission’s website and also from the Public Information Office. Chair Murphy noted that in addition to discussing a variety of issues related to Chapter Eight, the group also proposed guideline amendments in the report which the Commission would consider at its November meeting.

Chair Murphy stated that two items on the agenda could be eliminated. Staff Director Tim McGrath did not have any matters on which to report, and the proposed amendments to the Chapter Eight guidelines would not be addressed until November.

Chair Murphy announced that the minutes from the last public meeting, which was held on August 20, 2003, were circulated to the commissioners. Vice Chair Castillo moved to approve the August 20, 2003 minutes. Commissioner Hinojosa requested a minor change to the minutes concerning a training session held in the Southern District of Texas. Vice Chair Castillo moved to approve the minutes as modified. Vice Chair Steer seconded the motion. The minutes were approved unanimously.

Chair Murphy stated that the Commission could now move on to the main topic of the day, which was to deal with the difficult responsibility that Congress gave the Commission under the PROTECT Act. She noted that Congress directed the Commission to reduce downward departures substantially and also to provide adjustments for early disposition or "Fast Track" programs approved by the Attorney General. She added that the Commission had only 180 days to perform this daunting task.

Chair Murphy remarked that many groups affected by the federal sentencing guidelines are interested in any amendments to the guidelines that address downward departures. She stated that because the Commission knew that many people would want to be heard on this issue, it published a notice for comment in the Federal Register so that it would have the opportunity to receive written feedback from the many interested groups. In addition the Commission analyzed its own data to understand how the guidelines and downward departures have been used in different kinds of cases and different regions. With respect to Early Disposition Programs (EDPs), also known as "Fast Track" programs, the Commission requested information from the Department of Justice. The Commission also held public hearings at which various people testified on downward departures and EDPs. Furthermore, Chair Murphy noted, the Sentencing Reform Act provided factors for the Commission to consider in any aspect of its work, and one of those was sentencing disparity among similarly situated defendants.

Chair Murphy stated that the Commission had drafted proposed amendments and that the deadline to submit these to Congress was October 27, 2002. In addition to the amendments, she mentioned that the Commission also considered an issue for comment that it felt was important to its consideration. The Commission also identified criminal history, EDPs, and immigration issues, including voluntary deportation and collateral consequences, as areas that it wanted to consider and possibly publish for comment in the future. Chair Murphy indicated that the Commission had studied these areas but felt they needed further consideration.

Chair Murphy called upon General Counsel Tetzlaff to present the package of amendments that had been developed. General Counsel Tetzlaff stated that under §401(m) of the PROTECT Act, which was enacted on April 30, 2003, Congress directed the Commission, not later than 180 days after the enactment of the Act, to review the grounds for downward departures and promulgate pursuant to section 994 of title 28, United States Code: (1) appropriate amendments to ensure that the incidence of downward departures is substantially reduced, (2) to promulgate a policy statement authorizing a downward departure of not more than four levels pursuant to an EDP approved or authorized by both the Attorney General of the United States and the United States Attorney, and (3) any other conforming amendments necessitated by the PROTECT Act. General Counsel Tetzlaff stated that since the PROTECT Act took effect on April 30, the Commission and its staff have worked diligently to carry out the directive within the limited time frame allowed. As Chair Murphy indicated, the Commission solicited, formally and informally, comment from the public and particularly components of the federal criminal justice system, both from the perspective of how generally to respond to the congressional directive, as well as on specific approaches to possible amendments. General Counsel Tetzlaff noted that two public hearings were held by the Commission, one in August and one in September, and numerous working sessions were held between the Commission and the staff. He stated that this work culminated in a comprehensive eight part proposed amendment, which he would briefly describe.

Part I of that amendment consists of modifications intended to clarify and tighten the language as to when a court may depart from the guideline range. The amendment language more clearly describes the standard for departure, limits departures based on a combination of factors to the rare case, and lists prohibited departures, including acceptance of responsibility (so called "super acceptance"), a defendant’s aggravating or mitigating role in the offense (so called "super mitigating role"), a defendant’s decision, in and of itself, to plead guilty or to enter a plea agreement, and the fulfillment of legally required restitution obligations. The proposed amendment revises the application notes to §5K2.0 (Grounds for Departure) to state more clearly the intended infrequency of departures and to articulate the new standard of review set forth in the PROTECT Act. Finally, the proposed amendment revises the background commentary to strike a balance between emphasizing the rarity of departures and the critical role that departures play in our system of justice.

Part II of the proposed amendment package deals with departures under Chapter Five, Part H (Specific Offender Characteristics). The proposed amendment makes some minor changes in the introductory commentary to conform to the changes just referenced in §5K2.0. It amends §5H1.4, the physical condition guideline, to prohibit gambling addiction as a grounds for departure. It amends §5H1.6, the family ties guideline, by eliminating the community ties language and tightening the circumstances for a departure based on loss of caretaking or financial support by requiring that the court find a number of specific circumstances before a departure on that ground can be granted. The proposed amendment also makes some conforming changes to §5H1.7 by making clear that a defendant’s role in the offense is not a basis for departure.

Part III of the proposed amendment package deals with other departures under Chapter Five, Part K (Other Grounds). It amends §5K2.10, the victim’s conduct departure provision, to add a factor requiring that the defendant’s actions be proportional to the victim’s provocation. Similarly, §5K2.12, the coercion and duress departure provision is amended to require that the defendant’s actions be proportional to the coercion and duress involved. Section 5K2.13, the diminished capacity departure provision, is amended to clarify the causal link between the offense and the diminished capacity. Section 5K2.20, the aberrant behavior departure provision, is amended by adding that any significant prior criminal behavior will bar the departure, and an application note is added to make clear that repetitious or significant planned behavior will not meet the requirements of a single criminal occurrence in order for this departure to apply. In addition, an issue for public comment is included as to whether to eliminate the aberrant behavior departure provision and instead deal with such a characteristic under criminal history.

Part IV of the proposed amendment deals with criminal history. Section 4A1.3, the policy statement related to the adequacy of criminal history, is amended by (1) requiring the court to specify the reasons for the departure, (2) prohibiting departures below the lower limit of the applicable guideline range for category one, (3) prohibiting departures for armed career criminals and repeat and dangerous sex offenders, (4) limiting departures for career offenders by providing that such departures may not exceed one criminal history category, and (5) prohibiting a defendant with more than one criminal history point from qualifying for safety valve treatment because of a departure to category one. The proposed amendment also makes conforming changes to §4A1.1 (Criminal History).

Part V of the proposed amendment deals with EDPs. A new departure provision is added to Chapter Five, Part K, which tracks the statutory language of the PROTECT Act that upon a government motion the court may depart downward not more than four levels pursuant to an EDP authorized by the Attorney General and the U.S. Attorney of the particular district in question.

Part VI of the proposed amendment deals with plea agreements. It amends §6B1.2 (Standards for Acceptance of Plea Agreements) by requiring the court to specify reasons justifying a downward departure in either the statement of reasons or the judgment and commitment order. It makes clear in the commentary that neither a defendant’s decision to plead guilty nor simply entering into a plea agreement, in and of itself, is sufficient reason to justify a departure.

Part VII of the proposed amendment amends Chapter One (Introduction and General Application Principles) by moving the original Introduction to Chapter One into an historical note to a new guideline, which sets out the authority of the Commission.

Part VIII consists of miscellaneous amendments, including the addition of some definitions in the application notes to §1B1.1 (Application Instructions) and by striking language in the kidnapping guideline, §2A1.4, necessitated by some PROTECT Act variances in effective dates.

General Counsel Tetzlaff commended the team that worked on this departure issue. He noted that the team was chaired by Lou Reedt, and consisted of Judy Sheon, Ken Cohen, Lisa Klem, Lisa Rich, Courtney Semisch, Christine Kitchens, Paul Hofer, Davina Chen, and Bobby Evans. He stated that the team put a great deal of work into this project in the very short time frame it had available to it. General Counsel Tetzlaff noted, in particular, Judy Sheon’s work as the drafter of the amendment language.

General Counsel Tetzlaff stated that a motion would be in order (1) to promulgate these amendments as a package under the authority of §401(m) of the PROTECT Act, with an effective date of October 27, 2003, (2) to find, due to the extensive nature of these amendments, the very limited time frame provided, and limited Commission staff, that there exists good cause under §553(d) of title 5, United States Code, of the Administrative Procedures Act, to dispense with the usual requirement that these amendments be published not less than 30 days prior to their effective date, (3) to authorize staff to make technical and conforming changes if needed, and (4) to publish an issue for comment relating to possible elimination of the aberrant behavior departure (§5K2.20) by dealing with the problem as part of criminal history, with a 60 day comment period and with the authority of the staff to make technical and conforming changes, if necessary. Chair Murphy asked if there were a motion relating to the proposal outlined by General Counsel Tetzlaff.

Vice Chair Steer asked for clarification with respect to the 60 day comment period for the aberrant behavior issue. He stated that for practical reasons the Commission might want to make that comment period end at the same time the comment period would end for the first group of amendments that were expected to be published in November. Vice Chair Steer asked the staff whether that seemed reasonable. Special Counsel Sheon noted that traditionally the Commission waits until December to publish all of the proposed amendments and issues for comment at one time. The 60 day comment period would run from the date of publication in the Federal Register. She stated that if that approach was acceptable to the Commission, it would be used for the aberrant behavior issue as well.

Commissioner Hinojosa expressed concern that the language used in §5K2.0(d)(4) regarding plea agreements might cause confusion because it appeared to be in conflict with the Fast Track provisions that Congress directed the Commission to put in the guidelines. General Counsel Tetzlaff indicated that it might be possible to address this issue with a conforming amendment. Chair Murphy stated that because this was an area where many sentencing courts have not specified their basis for departing, she believed it was important that the guidelines address it. General Counsel Tetzlaff stated that he did not see inconsistency between the two provisions because §5K2.0(d)(4) would not have an impact on the Fast Track provisions. Vice Chair Steer agreed that the provisions were not in conflict. Special Counsel Sheon stated that a technical amendment could be made to make §5K2.0(d)(4) more specific so as not to include Fast Track agreements. Chair Murphy stated that it was very hard to draft language on the spot, and Special Counsel Sheon indicated that the staff would work with the Commission to resolve any inconsistency in the two provisions.

Chair Murphy indicated that it would be preferable to have a motion on the floor before discussing the amendments in detail. Vice Chair Steer made a motion to proceed in accordance with the report by General Counsel Tetzlaff. Vice Chair Sessions seconded the motion.

Vice Chair Sessions stated that General Counsel Tetzlaff failed to mention an additional restriction made in relation to aberrant behavior which eliminated the use of the departure in safety valve cases that otherwise would be subject to a mandatory minimum of five years or more. Special Counsel Sheon indicated that the amended definition of a serious drug trafficking offense for which a departure was prohibited covered any drug offense under title 21, United States Code, except for possession, that carried a mandatory minimum term of not less than five years regardless of whether the defendant qualified for the safety valve. General Counsel Tetzlaff acknowledged that he did not mention this change. He indicated that his summation of the amendment package was not all inclusive, but rather he tried to give an overall summary covering only the highlights. Vice Chair Steer indicated that he did not see this change as substantive, but merely as a clarification.

Vice Chair Castillo noted that the PROTECT Act was what brought the Commission and the public to this meeting. He noted that while the PROTECT Act has been highly debated, it would not be proper for him to debate the PROTECT Act as a commissioner. He stated that his role was to foster a constructive dialogue with Congress. He mentioned that his four years on the Commission had taught him that the Commission’s staff was the best and that it had been a privilege for him to serve with it. However, he stated that even with this excellent staff, Congress should know that one of the things that made this day so difficult for the Commission was the very restrictive time limit it had received which limited the Commission’s work. It took most of the time period to analyze the data and to receive public comment.

Vice Chair Castillo stated that all of the acts of Congress, including the PROTECT Act, proved that departures have a critical role in sentencing. The real debate was what that role should be. The data showed, by his best conclusion, that the overall downward departure rate, once it was properly analyzed, was about 10%. He indicated that proper analysis required consideration of the various types of government sponsored downward departure rates, including most importantly, those departures occurring in five districts on the Mexican border, which accounted for 60% of downward departures nationwide. Excluding these government sponsored departures left an overall downward departure rate of about 10%. He acknowledged that it was debatable whether this rate was too high or too low; however, based on his experience in the criminal justice system, his conclusion was that there was no real evidence showing that judges were in any sense out of control with respect to downward departures. He acknowledged that this did not mean judges were perfect and got every sentence right.

Vice Chair Castillo stated that the Commission had taken significant action to increase the accountability of judges by making the sentencing standards tighter and clearer and by greatly limiting the discretion of judges to depart. He noted that the Commission’s data showed that the primary reasons for downward departures, constituting over half of all departures, were (1) pursuant to plea agreement (22.5% of all departures), (2) over representation of criminal history (7.3% of all departures), and (3) general mitigating circumstances (7% of all departures). The other most common reasons were physical conditions, family ties and responsibilities, and diminished capacity. Vice Chair Castillo expressed his belief that the Commission was eliminating or limiting all of these departures. The rest of the downward departure reasons that rounded out the six most frequently cited reasons for granting a downward departure were aberrant behavior, Fast Track, and immigration type offenses. He noted that those all were being addressed in the proposed amendment in some fashion either by limitation or through issue for comment. In addition, he stated that the Commission hoped to clear up any confusion in the field regarding aberrant behavior by receiving comment from the public on this matter. Vice Chair Castillo stated that the Fast Track programs needed to be studied further. He acknowledged the tremendous work done by judges, prosecutors, defense attorneys, and probation officers along the border of Mexico to deal with an overwhelming situation.

Even though he might not agree entirely with everything contained in the amendment package, Vice Chair Castillo stated that he would vote in favor of the package because he believed it would lead to a substantial reduction in departures. He stated that this was just the beginning of the Commission’s work on departures. He noted that the world of sentencing was significantly changing, in part due to the PROTECT Act. Over the previous several months there had been significant steps taken by the Attorney General to implement the PROTECT Act. These together with the requirement in the PROTECT Act for documentation from judges, and the actions of the Commission with respect to amending the guidelines, collecting data, and providing training, would lead to a substantial reduction in departures. Vice Chair Castillo stated that he would like Congress to be aware that the Commission would be studying all of these issues further. In fact, before the PROTECT Act was enacted, the Commission had already begun studying downward departures as part of its 15 Year Study. Vice Chair Castillo indicated that his fellow commissioners would likely discuss other issues that the Commission believed also warranted further examination.

Vice Chair Steer stated that although he made the motion to approve the package, he does so with some reservation. He stated his hope that Congress would approve of the Commission’s work and not issue further directives to the Commission with respect to this task. He stated that those people who wanted the Commission to do little or nothing in response to the PROTECT Act probably would not be pleased with this amendment package because it made a number of substantive changes in the right direction. On the other hand, he noted that those people who wanted the Commission to make wholesale eliminations of departure categories would not be pleased with the amendment package because the Commission had not taken such measures. He expressed his support for the Commission’s return to the statutory language, which sets the standards for departures, and its removal of the gloss that allowed courts to grant a greater number of departures than Congress indicated was acceptable. He also supports the Commission’s decision to tighten the standards with respect to a number of departure provisions.

Vice Chair Steer indicated that some of his reservations stemmed from the fact that he believed a number of areas in the guidelines required further review by the Commission. His greatest reservation concerned the combination of factors departure. His concern generally was that the effort to tighten the standards in Chapter Five, Part H and Part K, by stating the minimum threshold that a defendant must meet to qualify for a departure, was greatly undercut by allowing a departure based on a combination of factors, none of which required a minimum threshold except whatever an individual judge finds sufficient. He stated that the continuation of this departure basis was problematic, and at a minimum he would have limited it to only those factors he viewed as dealing with offender characteristics. Vice Chair Steer acknowledged and commended the Commission for retaining the current language in the provision that these departures should be "extremely rare."

Vice Chair Steer also stated that criminal history departures should have been tightened to a greater extent. Specifically, he favored limiting downward departures for overstatement of criminal history to a one category departure. With respect to collateral consequences, he noted that alien defendants generally did not qualify for treatment in the Bureau of Prisons (BOP) system nor under the Immigration and Naturalization Service (INS) system in the same way that other defendants did. He stated that some judges who had noticed this disparate treatment had been granting compensatory departures measured in a way that they see fit. Vice Chair Steer would have prohibited this practice. He proposed an amendment that dealt specifically with alien defendants, and an alternative amendment that dealt generally with decisions that were committed by law to the BOP, INS, or in some cases, the Sentencing Commission, but were not intended to be left to the ad hoc discretion of individual judges. His proposals were not part of the proposed package, but he would offer them as proposed amendments or issues for comment at a later date. The Supreme Court indicated a number of years ago that some categories of decisions under the Sentencing Reform Act, specifically credit for time served, were left to the BOP. This should apply as well to other similar decisions, such as decisions regarding designations, classifications, and qualifications for certain programs. Either the Sentencing Commission should address these matters systematically under its authority, or they should be prohibited bases for departure. Leaving them to the discretion of individual judges did not conform with the Sentencing Reform Act.

Vice Chair Steer thanked the staff for their great work and the interested public for providing the Commission with feedback on these matters. He noted that a lot of public feedback had been incorporated into the Commission’s work, and he urged the public to come forward with any further suggestions it might have. He hoped the amendment package would be viewed as a good start.

Vice Chair Sessions stated that responding to Congress’s directive was an extraordinarily difficult task. The Commission arrived at a consensus, which he asserted was a sign that it went through very healthy discussion and debate on these matters. He stated that he wished to address one theoretical difference among the views of the commissioners that appeared in their discussion of criminal history. He looked at departures as being available to a judge only in exceptional or extraordinary cases. He stated that if that was the underlying condition for departure, it was almost impossible to say in advance to what extent the judge should depart. Vice Chair Sessions stated that the alternative, which would conform more to our criminal justice system and would be responsive to the PROTECT Act, was that extraordinary circumstances should be incorporated into the guidelines. With respect to criminal history, he stated that the guidelines should account for either over representation or under representation of criminal history. Doing so would allow judges to exercise discretion in less exceptional cases in a very restricted way, and also disallow such departures except in truly extraordinary cases.

Commissioner O’Neill expressed praise for the PROTECT Act in some respects. He stated that the PROTECT Act fell into a tradition of sentencing that was shaped significantly by the Sentencing Reform Act. He remarked that he was fortunate not to have to deal with the day to day impact that sentencing decisions have on individual defendants’ lives and to have the benefit of looking at this matter in more of an academic sense. He stated that the original Sentencing Reform Act recognized that departures were a part of this individualized sentencing system and that Congress recognized in the PROTECT Act that legitimate reasons for departing existed. He mentioned that illegitimate reasons also existed, such as race, ethnicity, and political ties. Commissioner O’Neill stated that while most everyone agrees that these types of circumstances should never be the basis for granting a departure, most people also recognize that in certain individual cases, extraordinary circumstances may warrant a departure from a standardized sentence. He asserted that the difficulty arose in making sure that when judges decided to depart they did so based on legitimate reasons, which could be subject to appellate review.

Commissioner O’Neill stated that the PROTECT Act assisted the Commission in its task of collecting data, which will give it a better picture of how judges are actually dealing with individualized sentences. He remarked that this was good for a couple of reasons. First, it would ensure that untoward disparity was eliminated. Second, it would provide the Commission with information on factors that appeared to be part of the sentencing culture throughout the country, but which have not been sufficiently taken into account in the guidelines. He noted that the Commission could use this information to determine whether additional departures or adjustments need be built into the guidelines. He expressed his belief that it was important for the Commission not only to listen to Congress’ concern regarding untoward disparity, but also to listen to judges to determine whether there were factors not taken into account in the guidelines. Commissioner O’Neill stated that part of the Commission’s duty in authorizing downward departures was to be responsive to judges’ concerns. The PROTECT Act’s reporting requirements would assist in this duty by enabling the Commission to understand better what was going on out in the field with respect to sentencing.

Commissioner O’Neill indicated that he wished that the Commission had had more time to study and address the issue of departures. He viewed the amendment package as merely a first step, and noted that it was certainly not the end of the Commission’s analysis of departures. He mentioned that the Commission was in the process of drafting a report to Congress to report on the status of departures and also additional amendments that might be in order. He asserted that these amendments would have the affect of eliminating any departures the Commission felt were unnecessary and to make sure the guidelines provided sufficient flexibility for judges in circumstances where it was needed and warranted.

To Commissioner O’Neill, the main difficulty with the whole process was the perceived inadequacies of the criminal history guideline. He would prefer to have eliminated the aberrant behavior policy statement and to have created an analog to it in criminal history that would have allowed judges to fashion sentences that are appropriate for true first time offenders. He saw the aberrant behavior policy statement, as it appeared in the proposed amendment package, as an attempt to give some sort of effect to 18 U.S.C. § 994(j) by allowing judges to grant first time offenders a break under the guidelines. He stated that, in his opinion, the policy statement was poorly drafted, but acknowledged that it might be the best the Commission could do in such a limited time. Nevertheless, he noted that the proposed amendments were a restriction on aberrant behavior, even as the provision was amended in 2000. He stated that the Commission had more work to do on this provision.

Commissioner O’Neill stated that the criminal history departure provision had been tightened in the proposed amendment package. For example, departures based on over representation of criminal history would now be prohibited for armed career offenders. In the case of career offenders, he stated that the Commission needed to review the calibration of the criminal history categories to ensure that appropriate sentences were imposed on those people who were not as culpable under the guidelines or did not pose as great a risk of recidivism. He believed that the Commission should recalibrate the criminal history categories. He stated that he would have preferred not to limit departures for criminal history until the Commission has had time to examine this area of sentencing more carefully through its recidivism study.

Commissioner O’Neill stressed the fact that the proposed amendment package was the Commission’s first step in examining downward departures, both in the sense of allowing judges more opportunity where it was appropriate to make individualized sentences and to eliminate those type of departures Congress was concerned about that tend to increase uncertainty and disparity in the sentencing process. He stated that the PROTECT Act, with respect to its data collection requirements, would help the Commission fulfill its obligation both to the judicial community and Congress. He stated that it was incumbent upon the Commission to assess the data it had, while recognizing that there were caveats, such as inadequate reporting by some courts. He expressed his hope that the PROTECT Act would enable the Commission to collect more accurate and complete data. He added that the Commission had done the best it could in the limited time it had.

Commissioner Horowitz stated that while there might have been disagreements regarding how to respond to the PROTECT Act and what actions to take in certain areas, all of the commissioners agreed that the staff put forth an extraordinary effort in helping compile the amendment package. One of the conclusions that he came to in this process was that the Commission’s data was incomplete in two respects. First, some districts fail to send data to the Commission, and second, the data sometimes did not specify the grounds for departures. He noted, for example, that grounds such as plea agreement or other mitigating circumstances were stated as the reason for departure without any further specificity as to what actually warranted the departure. He stated that therefore it was difficult to discern what was driving departures. He expressed his belief that one of the most significant benefits of the PROTECT Act would be to improve the Commission’s data collection, which would allow the Commission to get a better understanding of the reasons used to justify departures.

Like the other commissioners, Commissioner Horowitz viewed the Commission’s effort as a first step. He remarked that the Commission had to be responsive to Congress and had to do so in a way that was appropriate based on the limited data it had and in the short time frame Congress allowed. While he did not fully agree with everything contained in the amendment package, he believed that the Commission worked extremely diligently to arrive at the package it was presenting. He urged everyone to review the report that the Commission would issue, as it would present a greater compilation of the data. The next steps he believed the Commission should take were (1) to publish a number of issues for comment on which guidance would be beneficial, (2) to ensure data collection was proceeding in accordance with the PROTECT Act, (3) to examine the effect that the Commission’s actions have on the data it receives, (4) to see how the actions the Department of Justice had taken with regard to its memoranda affect departures, and (5) to determine the impact of the change in the Koon standard. He added that these were all important issues for the Commission to consider as it went forward. He stated that it was incumbent upon the Commission to analyze new data as it was received and to take appropriate action. He expressed his hope that the additional data would provide more clarity as to what was driving departures so that the Commission might determine whether the guidelines needed to be tightened or amended. In conclusion, Commissioner Horowitz stated that the proposed package would not necessarily make every commissioner happy, but it was the Commission’s best effort based on the data it had and given the allotted time frame.

Ex Officio Commissioner Jaso stated that when the Feeney Amendment and the PROTECT Act were passed, there was a lot of debate regarding the rate of downward departures that were attributable to defense motions over objections or acquiescence by the government, otherwise known as judge initiated departures and non-substantial assistance, non-Fast Track downward departures. He agreed that the data were incomplete. He stated that clearly Congress was concerned about the accuracy and completeness of the data available to the Commission, the Department of Justice, and itself. He added that Congress also was concerned about the accountability of certain districts that flouted their responsibility to provide data to oversight entities such as the Commission and itself. Ex Officio Commissioner Jaso stated, however, that the data, though incomplete, were quite clear; that over time the rate of downward departures had been in one direction, and that was to increase substantially. He remarked that no matter what one thought the rate of downward departures was at the moment, there had still been an increase, and it was an increase that was not attributable to Fast Track, plea agreements, or anything other than the fact that judges were increasingly departing. He noted that downward departures had increased approximately 100% in a five year period ending in 2001. This increase, he asserted, was partially attributable to the Commission’s inaction over time to respond to this trend. He noted that this was something that Congress was aware of, something that the Department of Justice had complained about for some time, and something the Commission had been aware of at least since 2000 when the Senate Judiciary Committee held a hearing in which it identified the upward trend in departures. He stated that he did not mean to say that the PROTECT Act or the Department of Justice sought to eliminate downward departures. Rather, he noted, the goal was to address the upward trend, which should be dealt with in a common sense manner.

Ex Officio Commissioner Jaso stated that when the first Guidelines Manual was drafted, the Commission could not have anticipated all circumstances a judge would face with respect to sentencing and perhaps no Commission ever could. He asserted that over time, however, one would think that the departure rate would in fact decrease. As the Commission continued to amend the guidelines to take into account additional circumstances, the instances in which a circumstance that had not been adequately considered under the guidelines, and thus, would warrant a departure, should have occurred less frequently. He noted that the Koon decision indicated that it was the job of the Sentencing Commission to police downward departures, monitor trends in departures, and to take necessary action. In the Department of Justice’s view the Commission did not address the problem with downward departures but perhaps exacerbated it by codifying in the guidelines grounds for departures, such as aberrant behavior, that were questionable at best.

Ex Officio Commissioner Jaso commented that the initial version of the PROTECT Act broadly would have prohibited all non-specified grounds for downward departure and would have prohibited certain specified grounds for departure, such as aberrant behavior. He mentioned that this Commission sent a letter to Congress asking for time to study the issue. A compromise was reached in a conference committee that substituted the directive to which the Commission was responding for an across the board prohibition. The goal that Congress gave the Commission was to reduce substantially the rate of downward departures, and Congress also gave substantial directives to the Justice Department, which it felt also contributed to the rising rate. He stated that the Department of Justice had issued guidance with regard to litigation practices, requiring Assistant U.S. Attorneys to object to departures that were not supported by independent facts and to bring departures that were improper and unwarranted to the attention of the appellate section of the Criminal Division and ultimately to the Solicitor General to determine whether to appeal.

Ex Officio Commissioner Jaso mentioned that Congress noted that the various types of Fast Track programs that exist, not only in the Southwest border districts, but in other districts as well, did indeed increase the rate of downward departures substantially. Congress enacted as part of the PROTECT Act for the first time, an acknowledgment and an exception to the Sentencing Reform Act to allow different treatment of certain classes of cases in certain districts that required such treatment. By doing this, it clearly intended to address the overwhelming number of immigration cases the Federal government was required to handle along the Mexican border. Ex Officio Commissioner Jaso asserted that the Department of Justice had taken decisive and substantive action in response to Congress’ concerns. He noted that it took action not only in areas that Congress addressed in the Feeney Amendment and the PROTECT Act, but also in other areas, such as plea bargaining and charge bargaining. He believed that the Department of Justice had taken a lot of unwarranted flack for its actions, but that the goal of the Department of Justice was to adhere as much as possible to the original intent of the Sentencing Reform Act, which was to eliminate unwarranted disparity, while recognizing the exceptional circumstances along the Mexican border.

Ex Officio Commissioner Jaso stated that the Commission’s actions were modest at best, but the staff did an extraordinary amount of work in a very short amount of time. The staff had been directed by the Commission to do things, such as study the Fast Track programs, which he did not think were the best use of time. Congress and the Department of Justice would address Fast Track programs. He stated that no substantive specified grounds had been eliminated outright by the Commission, but certain unspecified grounds, such as gambling addiction, acceptance of responsibility, mitigating role, and restitution, had been either eliminated or modified. He stated that those grounds that had been modified, for example, the condition specifying a loss of financial support as a factor to be considered for a departure based on family ties, were steps in the right direction. However, the Department of Justice warned that these modifications could have the unintended effect of creating a roadmap for judges and defense attorneys to find appropriate facts that would survive on appellate review. Nevertheless, the Department was hopeful that the modifications would have the intended effect of reducing the incidence of downward departures.

Ex Officio Commissioner Jaso asserted that none of the major grounds that were of concern to Congress and which the Department of Justice had continually brought to the attention of the Commission (i.e., combination of factors, criminal history, aberrant behavior, and family ties) had been substantially eliminated or substantively limited. In his opinion, it was doubtful that the amendments the Commission made would substantially decrease the incidence of downward departures. Other factors, such as steps that the Department of Justice had taken and judges’ awareness of Congress’s concern regarding departures, might reduce the rate of downward departures, but he did not believe that the Commission’s actions would have the same effect. The Department of Justice’s view was that the Commission had failed to comply with Congress’s directive. He had no doubt that the Commission would exercise its prerogative to defend its actions as substantive steps. He noted, however, that the broader issue was how Congress would view the chance it gave the Commission at its express request to act substantively within a limited amount of time. If Congress agreed with the Department of Justice’s view that the Commission’s actions were neither substantial nor sufficient, he seriously doubted that it would give the Commission the same chance the next time it addresses substantial issues regarding sentencing policy.

Commissioner Hinojosa remarked that enough had been said on the issues so he would refrain from making a statement. However, he thanked Chair Murphy for doing an excellent job of keeping the Commission focused and on schedule.

Staff Director Tim McGrath called role on the pending motion. The motion passed unanimously.

In closing, Chair Murphy stated that she wished to make a few comments. She was pleased that General Counsel Tetzlaff had mentioned the names of the staff who worked on the departure amendments. That not only recognized the staff members for their hard work, but it also showed the amount of resources this small agency had devoted to this task. In addition, she wished to comment on the hard work of the commissioners, who not only attended meetings but also studied many materials, including public comment, reports and charts from the staff, and comments from the Department of Justice, Congressional staff, the defense bar, and other interested groups.

Chair Murphy mentioned that the Commission’s work on this project and Congress's interest in departures had caused the Commission to reflect on the quality and specificity of the data that it was receiving, as well as on the Commission’s coding procedures for the data. She stated that the Commission has set in motion some improvement in these areas that would help it determine better what is going on in the field with respect to the guidelines. Chair Murphy stated that the Commission is working with the United States Judicial Conference Criminal Law Committee to develop a better uniform document that could be used by all courts to identify the reasons on which each sentence is based and to specify the grounds for any departures from the guidelines. She noted that the Commission recognized that in addition to improving the form, they would have to train and educate judges and other personnel on how to complete these forms. She added that the Commission had discovered some coding errors, which supervisor Deon Haynes is working to correct.

Chair Murphy stated that the Commission believed that it had been responsive to Congress. She added that the Commission was in the process of drafting its report to Congress on its amendments to the guidelines. She noted that the Commission would be considering related matters in November. Chair Murphy also pointed out why the Commission needed to study "Fast Track" programs in the course of its work on the PROTECT Act. That was because Congress gave the Commission the job of determining the number of levels that should be permitted for these programs, the Commission needed to understand all that had driven the increase in departures, and the Commission is obligated to consider the guidelines as a whole. In conclusion, she stated that the Commission used the expertise that it has developed over the years to do the best job that it could in the time allotted. She noted that the Commission was informed that it would have a hearing on its report before the Senate Judiciary Committee in about a month's time.

Ex Officio Commissioner Jaso noted that this would be his last Commission meeting. He has been reassigned as an Assistant United States Attorney in New Jersey. He thanked Chair Murphy and the Commission for the experience, and noted the respect he had for each of the commissioners. He also thanked the staff. Chair Murphy presented Ex Officio Commissioner Jaso with a remembrance from the Commission and commended him for his hard work.

Chair Murphy adjourned the meeting at 11:51 a.m.