October 8, 2003

News Release

U.S. Sentencing Commission
One Columbus Circle NE
Washington, DC 20002-8002

For Immediate Release
October 8, 2003

Contact: Michael Courlander
Public Affairs Officer
(202) 502-4597

SENTENCING COMMISSION ACTS TO REDUCE
NUMBER OF SENTENCES BELOW THE GUIDELINES

WASHINGTON, D.C. (October 8) – In response to a directive from Congress contained in the PROTECT Act, the U.S. Sentencing Commission today voted to implement a package of amendments to the federal sentencing guidelines designed to reduce the frequency with which offenders are sentenced below the guidelines.

The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21) was enacted April 30, 2003. It directed the Commission to promulgate, within 180 days, guideline amendments that would "ensure that the incidence of downward departures are substantially reduced." A "downward departure" is the term applied to a sentence that is below the sentencing range specified by the U.S. sentencing guidelines. A court may "depart" above or below the guidelines only if it determines there is a factor that the guidelines did not adequately consider.

"We have worked hard on Congress’s directive in a short time period and have provided amendments responsive to its concerns," said Commission chair, Judge Diana E. Murphy.

In making its directive, Congress was expressing its concern that the increasing rate of downward departures from the sentencing guidelines may be undermining the goals of the Sentencing Reform Act, particularly certainty and uniformity in sentencing and the avoidance of unwarranted disparity. As evidence for this concern, Congress cited Sentencing Commission data showing that the rate of downward departures had increased from 5.8 percent in 1991 to 18.3 percent in 2001.

During the 180-day period allotted by Congress, the Commission solicited input through public notice and requests for written comment, and by gathering testimony through a series of public hearings.
"We are pleased that given our very tight time constraints we were able to conduct such an inclusive information-gathering process," said Judge Murphy. "The input we received from judges, prosecutors, defense attorneys, academics and others was invaluable in helping us tackle this daunting task."

The witnesses testifying at the Commission hearings were as follows:

Chief Judge Marilyn L. Huff, U.S. District Court for the Southern District of California
Judge David F. Hamilton, U.S. District Court for the Southern District of Indiana
Judge Lourdes G. Baird, U.S. District Court for the Central District of California
William Mercer, U.S. Attorney for the District of Montana
Paul K. Charlton, U.S. Attorney for the District of Arizona
Maria E. Stratton, Federal Public Defender for the Central District of California
Jon M. Sands, Assistant Public Defender for the District of Arizona
Steve Hubachek, Assistant Federal Public Defender for the Southern District of California
John P. Rhodes, Assistant Public Defender for the District of Montana
James E. Felman, Co-Chair, U.S. Sentencing Commission Practitioners Advisory Group
Michael Goldsmith, Professor, J. Reuben Clark Law School, Brigham Young University
Frank O. Bowman, M. Dale Palmer Professor of Law, Indiana University

Prior to the Commission taking action, Congress directly amended the guidelines to restrict departures for penalties involving sex crimes and pornography targeting children. The Attorney General subsequently issued new directives to the United States Attorneys regarding plea bargaining, appeals, and early disposition programs in all federal prosecutions. In addition, the Judicial Conference of the United States voted to standardize the forms used to report sentencing information to better capture departure information sent to the Commission; and the Administration Office of the U.S. Courts, the Federal Judicial Center, and the Sentencing Commission are coordinating a national training curriculum to educate the judiciary on these matters.

Included in the Commission’s action in response to the congressional directive that it substantially reduce the rate of downward departures were the following measures:

• The Commission prohibited departures based solely on the existence of a plea agreement;

• The Commission prohibited a number of existing grounds for downward departures: acceptance of responsibility, minor role in the offense, gambling addiction, and legally required restitution (e.g., repayment of victims of white collar offenses);

• The Commission limited the availability of a departure based on family ties and responsibilities; aberrant behavior; and similar circumstances;

• The Commission significantly limited both the availability and the extent of departures permissible for certain offenders with substantial criminal history;

• The Commission implemented a directive authorizing limited departures pursuant to early disposition (fast track) programs authorized by the Attorney General and the U.S. Attorney;

• The Commission also emphasized throughout the guideline amendment the requirement for courts to state with specificity their reasons for departures in order to comply with the PROTECT Act and to facilitate the Commission’s ongoing monitoring of departure practice as well as appellate review.

The amendments become effective October 27, 2003, and the Commission is preparing a written report to Congress reflecting the actions taken.

The U.S. Sentencing Commission, an independent agency in the judicial branch of the federal government, was organized in 1985 to develop a national sentencing policy for the federal courts. Since nationwide implementation in January 1989, federal judges have sentenced more than 600,000 defendants under the guidelines.ÿ