November 14, 2000

The Honorable Strom Thurmond
Subcommittee on Criminal Justice Oversight
157 Dirksen Senate Office Building
Washington, D.C. 20510

Dear Mr. Chairman:

Enclosed are my responses to follow-up questions in connection with the October 13, 2000 Subcommittee hearing.

Please do not hesitate to contact me if any additional information is needed.


John R. Steer
Vice Chair

Questions by Senator Thurmond

1. Mr. Steer, do you believe that the trend in sentencing below the Guidelines is extensive and extends far beyond the illegal immigration context? Please explain.

There is a general increase in the rate of sentencing below the Guidelines for reasons other than substantial assistance (i.e., "other downward departures"), across all major offense types. The high rate of downward departures for immigration offenses has substantially added to, but does not fully account for, this overall trend. The Commission plans to carefully study this trend as part of the 15-year study described by Chair Murphy.

2. Mr. Steer, is the trend toward downward departures more extensive in certain judicial circuits, such as the Ninth Circuit, than others? Please explain.

Yes. Exhibit 9 attached to my written testimony shows that, in FY1999, the rate of other downward departures exceeded 15% in three circuits, as follows: Ninth Circuit - 36.4%; Second Circuit - 19.5%; and Tenth Circuit - 17.4%. In contrast, the rate of other downward departures was lowest in the Fourth (4.6%), Eleventh (6.5%), and the Sixth (6.7%) Circuits.

With regard to substantial assistance downward departures at sentencing, the Third (32.2%), Eighth (26.0%), and Sixth (25.6%) Circuits each exceeded 25% in FY1999, while the Ninth (10.4%) and Tenth (12.8%) Circuits had significantly lower rates of substantial assistance downward departures at sentencing than the other circuits.

3. Mr. Steer, it was suggested at the hearing that sentences are too harsh in the federal system. However, it appears that statistics from the Commission show that for drug offenses, and indeed for all offenses combined, the average length of sentences in federal court has been declining in recent years. Do you agree that this trend is toward lower sentences?

Imprisonment sentences imposed under the federal sentencing guidelines are significantly longer than pre-guideline sentences for most types of offenses; however, the length of imprisonment sentences imposed under the guidelines for all offenses combined has trended downward in recent years. It appears that this overall downward trend is influenced heavily by the downward trend in sentence length for drug trafficking cases. For a number of other types of offenses, average sentence length has stayed about the same or increased in recent years.

4. Mr. Steer, to what extent do downward departures exceed upward departures, and in general has the disparity between these two types of departures been increasing in the offender's favor over the years?

In FY1999, the rate of all downward departures exceeded the rate of upward departures by 57.5 to 1; the rate of other downward departures exceeded the rate of upward departures by 26.3 to 1. These ratios have widened over the years as the rate of other downward departures has grown, while the rate of upward departures has declined. For example, in FY1989, the rate of all downward departures exceeded the rate of upward departures by only 2.1 to 1. Five years later, in FY1994, that ratio was 22.6 to 1. These differences appear to be rather large in part because the rate of upward departures has been relatively low throughout the history of the guidelines (less than 2.0% in every year since 1991).

5. Mr. Steer, it was argued during the hearing that the Congress expected a 20% departure rate from the Guidelines excluding substantial assistance departures. Do you agree?

Footnote 3 in my written testimony briefly alluded to this "congressional expectation." As I noted there, the 1983 report of the Senate Judiciary Committee (S. Rep. No. 225, 98th Cong, 1st Sess.) described an expectation that the rate of departures - - up and down - - from the contemplated sentencing guidelines would be about the same or less than the prevailing rate at which the U.S. Parole Commission set release dates above or below their parole guidelines. That "departure rate" was about 20% at the time, consisting of about 12% above and 8% below. Moreover, the approximate 8% of parole guideline "downward departures" included cases in which release dates were set below the parole guidelines to reward inmates' assistance to the government in the investigation and prosecution of other crimes (although the concept of substantial assistance was not formally recognized and codified by Congress until 1986). Thus, in my judgment, it is off the mark to claim, as some have, that today's 15.8% other downward departure rate is less than Congress expected. If anything, it apparently is substantially greater.

6. Mr. Steer, 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 departures, which was an 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?

Chair Murphy has answered this same question for the Commission. I would simply add by way of emphasis a point I made at the hearing: By curtailing (but not eliminating) the role of the appellate courts in policing departure decisions by district court judges, Koon necessarily has had the effect of placing greater responsibility on the Sentencing Commission, working in consultation with the Justice Department, to regulate departures through the Commission's powers to promulgate or amend guidelines, policy statements, and commentary. These amendment powers include actions characterizing particular departure factors as "forbidden" or "discouraged" where appropriate.

7. Mr. Steer, 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?

Chair Murphy has answered this question for the Commission.

Questions by Senator Leahy

1-5. Chair Murphy has answered these same questions for the Commission, and I have passed along my thoughts for her consideration.