Responses of Chair Diana Murphy
to Written Follow-Up Questions of Senator Strom Thurmond

Hearing Before the Subcommittee on Criminal Justice Oversight
on
"Oversight of the United States Sentencing Commission:
Are the Guidelines Being Followed?"

Friday, October 13, 2000

1. Judge Murphy, the Supreme Court has stated that resolving circuit splits is one of the primary responsibilities of the Sentencing Commission. I understand that the Criminal Law Committee of the Judicial Conference has recommended that the Commission attempt to address at least 18 circuit splits as soon as possible. How many circuit splits do you expect to resolve in the upcoming amendment cycle?

Response: Commission staff have identified approximately 40 circuit conflicts. We would like to address all conflicts if we could, but that just is not feasible in any one amendment cycle. Circuit conflicts present difficult, time consuming issues for the Commission; different courts of appeal have thought long about the issues and reached different conclusions. During the last amendment cycle, the Commission worked very hard on circuit conflicts and resolved five of them.

This year for the first time in the history of the Commission, and after publication in the Federal Register, we established a set of criteria to guide us in selecting which circuit conflicts to make policy priorities. After considering the public comment that we received and applying the criteria, we identified 11 circuit conflicts that we hope to address this year. Eight of them were on the Criminal Law Committee's top ten recommendations.

2. Judge Murphy, I am concerned about a circuit split that the Commission resolved this year regarding aberrant behavior, which is becoming an increasingly common reason for a downward departure in drug cases. A first time offense could almost always qualify for this. If this departure should exist at all, I think it should be strictly limited to cases where the defendant's conduct was spontaneous and thoughtless. Will you revisit this issue?

Response: This particular basis for downward departure caused a drastic split among the circuits. The stricter approach effectively foreclosed any use of this departure, and the looser totality of the circumstances standard provided no real guidance. Faced with dramatically contrasting approaches, we sought to fashion a realistic but carefully limited alternative, and the resulting guideline was adopted unanimously. The amendment permits this basis for departure only in an extraordinary case. A court may not depart below the guideline range on this basis if (1) the offense involved serious bodily injury or death; (2) the defendant discharged a firearm or otherwise used a firearm or dangerous weapon; (3) the instant offense of conviction is a serious drug trafficking offense; (4) the defendant has more than one criminal history point; or (5) the defendant has a prior federal, or state, felony conviction, regardless of whether the conviction is countable under Chapter Four (Criminal History and Criminal Livelihood).

We do not anticipate that courts will use aberrant behavior as a frequent ground for downward departure. We expect that its use will decrease in those circuits that previously followed the totality of the circumstances approach. The Commission will closely watch how this new formulation is working and revisit the issue if it seems warranted.

3. Judge Murphy, given the wide variation in departure rates and in the extent of departures among districts for substantial assistance, is the Commission considering any action to provide guidance to district judges on how far they should depart for substantial assistance?

Response: The Commission's published policy priorities for this amendment cycle do not include this topic. We have received some suggestions to look at this topic, and we may consider it in the future.

4. Judge Murphy, during your confirmation hearing last year, I was pleased that you informed me that you did not think the Guidelines needed fundamental changes. I understand that the Commission is conducting a 15-year review of the Guidelines. Do you continue to believe that the basic framework is sound and that fundamental changes are not warranted?

Response: The basic framework of the guidelines is sound, and our review will not be undertaken with the goal of producing fundamental changes. November 2002 will mark the 15 year anniversary of the guidelines, and we will soon see the 500,000th defendant sentenced under the guidelines. We believe that these benchmark events warrant taking the opportunity to look at the operation of the guidelines over these years in light of the goals of the Sentencing Reform Act. See 28 U.S.C. § 991(b)(1) (1994 & Supp. II 1996).

5. Judge Murphy, crime on the Internet is becoming an increasingly serious problem, but our criminal laws often are not keeping up with the new technology. Does the Commission plan to increase penalties to help deter hacking and to clarify what constitutes loss in the computer crime area?

Response: The Commission shares the concern of Congress about the increasing use of new technology by criminals to commit crimes. In the recent amendment cycle, we devoted a great deal of time to several new technology offenses. We significantly increased penalties for intellectual property offenses, mass marketing fraud via the Internet, identity theft, wireless telephone cloning, and sexual offenses against children that involve the use of a computer or other Internet-access devices.

In the current amendment cycle, we hope to complete a comprehensive reassessment of the economic crimes guidelines. We expect an economic crimes package to include a revised definition of loss that will clarify what constitutes loss in the computer crime area, as well as many other issues. The Commission sponsored a Symposium on Federal Sentencing Policy for Economic Crimes and New Technology Offenses on October 12 and 13, 2000. The second day was devoted solely to learning more about new technology offenses such as hacking, computer viruses, interrupted computer service, economic espionage, and consumer and securities fraud via the Internet. By all accounts the symposium was a success, and we expect it to help in the development of the economic crime package.

6. Judge Murphy, as you know, the use of ecstasy by young people has increased dramatically in the United States and is reaching epidemic proportions. Is the Commission planning to increase penalties regarding ecstasy this year?

Response: The Commission shares the concern of Congress about the disturbing trend of increasing availability and abuse of "club drugs" such as ecstasy and the need for serious punishment for distribution of such drugs. Commission data indicate that the number of federal convictions for ecstasy trafficking reached 117 during 1999, its highest level. Although ecstasy offenses account for a very small proportion of federal drug trafficking defendants sentenced in federal court - approximately .05 percent of all federal drug trafficking cases - the rate of increase in ecstasy offenses is alarming. The 1999 figure represents an increase of 485 percent above the 1998 figure of 20 cases, and a 208 percent increase over the previous high of 38 cases in 1996.

The Ecstasy Anti-Proliferation Act of 2000 directs the Commission to increase penalties for offenses involving ecstasy, and grants the Commission emergency amendment authority to implement the directive as soon as practicable. We already have begun to look at these offenses and expect to respond to the directive this amendment cycle.

7. Judge Murphy, it appears that the Commission could help control the number of sentences below the Guidelines. For example, it could establish more forbidden or discouraged factors for departure, which was in issue that the Supreme Court discussed in Koon. Do you think the Commission should create more forbidden or discouraged factors to help prevent unwarranted downward departures?

Response: During the most recent amendment cycle, the Commission promulgated amendments prohibiting downward departures for post offense rehabilitation and permitting upward departures for conduct that was dismissed or not charged because of a plea agreement. The specific question of whether the Commission should create more forbidden or discouraged factors for downward departures is not on our policy agenda for this amendment cycle, nor was it suggested in public comment received in response to the proposed policy priorities we published in the Federal Register. I expect that we will consider issues relating to departures as part of the planned 15 year review of the operation of the guidelines.

8. Judge Murphy, the Guidelines currently permit a departure for a "combination of factors." Does the Commission plan to review this ground for departure to determine whether the current language permitting this departure may be too broad?

Response: This ground for departure is not part of our current agenda, but we may examine it as part of our 15 year review.

9. Judge Murphy, it appears that an increasing area for downward departures is "post-offense rehabilitation." Does the Commission need to review this basis for departure and consider prohibiting this as a basis for departure if the rehabilitation occurs only after the defendant has been formally charged with the offense?

Response: Commission data shows that post offense rehabilitation was the basis for downward departure in 194 cases in fiscal year 1999. This number may decrease as a result of our decision last amendment cycle to forbid post sentencing rehabilitation as a ground for departure. We will continue to monitor this area of downward departure.