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January 13, 2010

US Sentencing Commission proposing amendments and seeking comment on lots of huge issues

As detailed in this new press release, which is titled "U.S. Sentencing Commission Seeks Comment on Alternatives to Incarceration, Specific Offender Characteristics Relevant to Sentencing, and Hate Crimes," the US Sentencing Commission is seeking public comment on a lot of critical federal sentencing issues. Here's more from the press release:

At its January 12 public meeting, the United States Sentencing Commission voted to publish for public comment proposed guideline amendments and issues for comment on a wide range of topics that include alternatives to incarceration, the relevance of specific offender characteristics to sentencing, and penalties for hate crimes. The 60-day public comment period runs through mid-March 2010, and a public hearing on the proposed amendments is scheduled in Washington, D.C., for March 18, 2010....

The Commission voted to issue for comment a proposed amendment expanding the court’s authority to impose an alternative to incarceration for drug offenders who need treatment for drug addiction and who meet certain criteria. The proposed amendment creates a new guideline that gives the court the authority to impose a sentence of probation with a requirement that the offender participate in a substance abuse treatment program. The defendant receiving such a sentence must be a willing participant in the program and must have committed the offense while addicted to a controlled substance. In addition, the offender must have committed a lower-level offense, and the offender must meet the “safety valve” criteria as specified in the sentencing guidelines.

The proposed amendment also would expand by one offense level Zones B and C in the guidelines’ sentencing table, making additional defendants eligible for the sentencing alternatives provided in the guidelines. Currently, the sentencing guidelines give the court the authority to sentence eligible defendants to community confinement, intermittent confinement, or home detention. The Commission also provided a number of issues for comment regarding alternative sentencing that includes a request for comment on defendants suffering from other conditions (e.g., mental conditions) and whether they, too, should be eligible for a treatment program as an alternative to incarceration.

The Commission issued for comment a proposed amendment responding to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act....

The Commission also is seeking public comment on the extent to which specific offender characteristics should be relevant at sentencing.  In particular, the Commission asks for comment on five particular offender characteristics: age; mental and emotional condition; physical condition, including drug dependence; lack of guidance as a youth; and military, civic, charitable, or public service, employment-related contributions, and prior good works.

Other proposed guideline amendments refer to guideline issues that include the calculation of criminal history points; the procedure to follow when arriving at a sentence, a departure, or a variance; and defacing a paleontological resource on federal land.  The full text of the proposed changes to the sentencing guidelines and issues for comment will soon be available on the Commission’s web site at www.ussc.gov.

Wow!  This seems like very big news on a lot of fronts, and I am hopeful that others agree with my instinct that this set of proposed amendments sound really good and should help take the guidelines in needed new directions.  It will be very interesting to see the specifics of the proposed amendments and the reactions that these various amendments may generate in from various usual sentencing suspects in various quarters.  (I also cannot wait to read comments about the best way to sentence those guilty of "defacing a paleontological resource on federal land.")

January 13, 2010 at 05:09 PM | Permalink


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To answer your last comment, Prof, the Commission proposes a new SOC in 2B1.5 which enhances any paleontological resource offense with the provision that the offender be placed in a secure enclosure with a re-animated member of the pre-historic species he or she has defaced a-la "Jurassic Park."

So, make sure when you're defacing fossils they aren't velociraptors.

Posted by: Ferris Bueller | Jan 13, 2010 5:20:15 PM

FB: Now that's what I call a true "alternative to incarceration."

Posted by: Doug B. | Jan 13, 2010 5:33:29 PM

This is very encouraging news!

But, why does the Commission needs further comment on whether age should be relevant at sentencing? It already concluded that it should be in both 2004 and 2005 (although it did nothing in response to the conclusion).

See Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines (May 2004), available at http://www.ussc.gov/publicat/recidivism-general.pdf.
"Recidivism rates decline relatively consistently as age increases. Generally, the younger the offender, the more likely the offender recidivates. ... Among all offenders under age 21, the recidivism rate is 35.5 percent, while offenders over age 50 have a recidivism rate of 9.5 percent." Recidivism Report at 12.

See also A Comparison of Federal Sentencing Guidelines Criminal History Category and the U.S. Parole Commission Salient Factor Score (Jan. 2005), available at http://www.ussc.gov/publicate/RecidivismSalientFactorCom.pdf. This time, USSC compared the Parole Commission’s salient factor score (which utilizes age as a component) and the Guidelines (which do not). Finding the salient factor score a better predicator of recidivism because of its use of age, USSC referred to age as a “powerful component of recidivism prediction” and noted “the power of age as a factor in the prediction of recidivism.” Comparison Report at 14.

Posted by: DEJ | Jan 13, 2010 6:08:06 PM

"I also cannot wait to read comments about the best way to sentence those guilty of 'defacing a paleontological resource on federal land.'"

When I was still an AUSA, a defendant sitting across the desk at the USAO threw his bubble gum at me. He was charged with defacing a paleontological resource on federal land. He moved to dismiss on the grounds that, while I was admittedly paleontological, I was not a "resource" within the meaning of the statute because I spent all my time reading Charles Krauthammer columns rather than working. The district court disagreed, but dismissed the indictment anyway, saying that it did not believe the statute was intended to protect living objects, which, despite my antique status, I still was, barely.

And moving right along.............

The proposed amendments come as no surprise. They look like they were mostly drafted by the Practitioners Advisory Group, which is governmentese for the Sentencing Commission's NACDL lobby. With the USSC now firmly in the hands of the defense bar (Chairman Sessions, a perfect gentleman, was the go-to defense lawyer in Vermont before Patrick Leahy (effectively) put him on the bench and then engineered his appointment as Chairman).

The SOC amendments are noteworthy because (1) they are straight out of the defense lawyer's dreambook for Explaining Why My Client Is Really Mr. Nicey And It Was Somebody Else's Fault Anyway; and (2) they greivously undermine one of the central ideas of the SRA, which was that sentencing should be more focused on the act and not on the actor. Essenttially, the SOC amendments would bless just about every source of excuse-making and subjectivity (sometimes disguised and sometimes not) that Billy Wilkins successfully tried to keep out.

The one about age is a good example. If the defendant is young, you argue that he deserves special leniency because his judgment wasn't mature, and a stiff sentence would handicap him for his whole life. If he's middle aged, you argue that he deserves special leniency because he's in the prime of his career, just at the moment when he can contribute the most and his family and kids need him. If he's old, you argue that he deserves special leniency because he's spent his life contributing to society, and any lengthy prison term would be tantamount, or close to tantamount, to a life sentence.

Translation: The defendant deserves "special leniency" if he has two eyes, a nose and a mouth.

As I say, this is a defense lawyer's dreambook. The only thing that's a saving grace, in a null-set sort of way, is that the amendments are largely superfluous, since in the post-Booker/Gall/Kimbrough world, defendant-hugging judges can do all of it anyway through their mostly (not completely, but mostly) limitless departure power.

The honest thing to do would be to outright repeal the SRA and openly go back to luck-of-the-draw sentencing, which is what this will create. If that's what the country wants, I think it's a disastrous mistake, but I'm not Congress, and elections have consequences.

Fortunately, so will the election coming up in a bit less than ten months, but that's another post.

Posted by: Bill Otis | Jan 13, 2010 6:57:10 PM

Nothing wrong in my book with a system of "justice" that is tempered by mercy. I can comprehend the problem such a justice system would pose for those are embroiled in a retributive-vengeance model of controlling the behavior of their fellow man.

Posted by: Mark # 1 | Jan 13, 2010 7:58:34 PM

Oh Bill, At least you're coming around a little bit. Before your unjustified hyperbole said the post-Booker world was irrational and unbridled discretion. Now, it's "mostly" limitless discretion. You're getting closer to reality. That's a good thing.

Of course, I could have predicted that any type of proposal that introduces sensible sentencing policies into what is otherwise a rigid and one-size-fits-all Guideline book would have been categorically rejected by you as nothing more than a gift to defense lawyers. Nevermind that it's what both Republican and Democrat appointed judges have been asking for for years.

Have you ever thought that these potential proposals are nothing more than the USSC's reaction to what they are seeing as justifiable reasons for non-Guideline sentences in the post-Booker world? I applaud the Commission for trying to update the GLs to reflect what it's seeing on the ground across the country. After all, this is exactly the role the Commission was supposed to play -- a evolution of the Guidelines based on district court feedback. Unfortunately, this ideal of progression was stiffed pre-Booker by strict appellate court review and external pressure on district court judges to not stray from the Guidelines. Now, the Guidelines will hopefully evolve in light of frequent variance grounds, and the Commission reacting accordingly.

In no way is this a repeal of the SRA. I would be more willing to take many of your comments and criticisms seriously if you didn't resort to such outlandish claims.

Posted by: DEJ | Jan 13, 2010 10:45:55 PM

DEJ --

I don't think you're quite in synch with how the USSC works. It's a political institution. It arranges its hearings and selects its witnesses at those hearings to suit the preconceived ideas of the people running the show, in this case veteran star defense lawyer, now distict judge, Bill Sessions.

The judges and "experts" who appear at these Commission gatherings don't show up at random. They are picked to build the record the pro-defense majority on the Commission wants compiled. Like almost everything else in Washington, it's scripted well in advance, except more shrewdly in this instance, because Sessions is a sharp guy and a good politician.

Sessions, like other shrewd liberals, is brilliant at finding useful Republican idiots to flesh out his agenda. This he has done, and he'll do more of it. But it's actually more than that. Judges generally believe that the real, true, authentic expertise in sentencing resides in -- guess who -- JUDGES!!! Lan' sakes alive, yet another Class of X that believes X should have more power! What a shock!

The real reason the defense bar will like these proposals (other than that they effectively wrote them) is that now they will be able more frequently to get away with subjective, excuse-making, sentiment-laden arguments that would have had a tougher time under the Guidelines as they existed when the Commission was serious about tamping down irrational disparity. Now that that seriousness has vanished, we'll be back to luck-of-the-draw sentencing. If that sort of roulette produced routine UPWARD departures, instead of routine downward ones, you'd be an unhappy camper.

Your being pleased with the new regime isn't because it's "updated." It is, of course, because of outcomes. Sentences are going to be lower -- or so you suspect, in all likelihood correctly.

I wish the Commission would just come out and say so. But that would spoil the game.

Posted by: Bill Otis | Jan 14, 2010 12:02:32 AM

Bill: While you may be right about Sessions' background, you're wrong about him having a bunch of "useful idiot" Republicans rubber-stamping his ideas on the Commission. A brief look at the resumes of half the members, a Reagan-appointed judge from Texas (and former Chair himself), a career AUSA appointed by GW Bush, and a former Bush White House Counsel (and former AUSA) - hardly a team of liberal (to borrow a term from Supremacy Clod) "cult criminal loving" advocates for offender's rights. Further, I don't think the other Judge on the Commission, Ruben Castillo (from FB's hometown of Chicago!), could also be called a raving liberal. While he's a Clinton appointee he also is a former AUSA. In fact, with the exception of the current Chair and the former Chair, the remaining four members of the Commission were at one time or another AUSA's.

Now, true enough, being a AUSA in and of itself doesn't make you a paragon of public safety or right about everything - since I can think of one former AUSA (ahem, Bill) who thinks pot ought to remain a schedule I controlled substance against all reasonable evidence otherwise - but I think your characterization of the these proposals being the work of a defense lawyer cabal are, well, factually wrong.

Second, regarding these ideas being contra to the SRA. I disagree that the SRA is all about the act and not the actor. The SRA is about eliminating disparity and ensuring consistency - there is nothing in that goal that says we don't take into account certain factors about the offender. In fact, there is a LOT about sentencing, and the guidelines in particular, that does just that. Honestly, I don't see how you could say this is a departure from the SRA. Having followed the Commission for a while, I think the one thing you can be sure of is that they wouldn't propose amendments to the guidelines that would be clearly violative of the SRA. That's sort of self defeating. In fact, under 28 USC 994(d), the commission is encourage to consider what, if any, relevance factors such as age, education, mental condition (Supremacy Clod should be thankful they are re-examining this), and the like should have on sentencing. The only specifically discouraged factors in this section are race/sex/national origin. If anything, the USSC is FOLLOWING it's mandate to review and revise under 28 USC 994(o) when it re-visits such things. Sorry, but the USSC may be violating your personal notion of what the SRA stands for, but they are following the law itself.

And, BTW, you can always publically comment. In fact, if the USSC is to be believed, that's sort-of what they want.

I think the USSC's address is something like:

Destruction of the Constitution Building
666 Liberal Row
Washington, District of Criminal-Lovers

Posted by: Ferris Bueller | Jan 14, 2010 10:56:49 AM

If only the defense bar really had the power Bill O. thinks we have . . .

Posted by: defense lawyer | Jan 14, 2010 12:19:57 PM

defense lawyer --

Your ship has come in. Climb aboard. The amenities are wonderful, and it's probably headed out to sea in ten months.

Posted by: Bill Otis | Jan 14, 2010 4:10:51 PM

Ferris --

NEVER, NEVER underestimate the number of useful idiots the Republican Party can produce. This town is littered with them.

I have to be a bit circumspect in discussing the Commissioners, since I know some of them, and what I say or might have said to them doesn't go up on the Internet. I know Dabney slightly, both from when she worked with me as an AUSA in the EDVA and from her time on Hatch's staff. I know of Castillo by reputation, and he is a down-the-line liberal.

I don't know Carr, but I know how he got his seat. His wife was a long-time staffer to Arlen Specter. Commission seats, even more than district judgeships, are in practice senatorial picks (although formally presidential picks). Carr got a Republican vacancy (when John Steer left), and Specter, then the ranking "Republican" on Judiciary, got to make the choice. Carr seemed ideal, since he was a former long-time AUSA (thus had good cover), was in a technical sense well-qualified, and had recently retired (thus was looking for something to do). But he's a liberal, which after all stands to reason, since so is Specter. And of course the ultimate irony is that this supposedly Republican vacancy was controlled by a Senator who never acted very Republican and now has vacated the premises in which he was never very comfortable anyway. (Just to be clear, I have nothing against Carr, and so far as I know he's a man of integrity).

Specter's going down in November, incidentally. You heard it here first.

Beyrl is a former chief of staff for Leahy, and although she was an AUSA for three years or so, is also a dyed-in-the-wool liberal, as you would expect from a Leahy person.

Hinojosa I don't know. I think he's a laid-back personality, like Alberto Gonzales. I think Bush got along well with such people, since Bush has a fairly vivid personality, for whatever else one may or may not think of him.

"[B]eing a AUSA in and of itself doesn't make you a paragon of public safety or right about everything..."

WRONGO!!! It makes you all of those things, plus a model for "Fitness Magazine," although oddly they haven't been calling lately.

"I think your characterization of the these proposals being the work of a defense lawyer cabal are, well, factually wrong."

It's not a cabal. They're quite open about it. Why not at this point?

"I disagree that the SRA is all about the act and not the actor. The SRA is about eliminating disparity and ensuring consistency - there is nothing in that goal that says we don't take into account certain factors about the offender."

The reason the Guidelines disfavored the SOC's the Commission now plans to approve was that focusing on the characteristics of the offender would promote precisely the idiosyncracy and subjectivity the SRA intended to limit. You're only going to have a realistic shot at consistency if you place relatively less weight on offender characteristics (which can vary all over the place) and relatively more on offense characteristics (which can also vary, but not as much, and are less prone to subjective assessment).

"Having followed the Commission for a while, I think the one thing you can be sure of is that they wouldn't propose amendments to the guidelines that would be clearly violative of the SRA."

That's the whole problem. Again: the Commission is a political body. It is now controlled by a majority that was hostile from the getgo to the idea of guidelines at all, as most of the defense bar was. Hence the push to create what will become non-guideline guidelines, i.e., words that will still have the form of guidelines but the effect of inviting exactly what the SRA and the original Guidelines were written to minimize.

Your error is that, this one time, you're not being cynical enough. You take the USSC as advertised, as a body of "experts" there to implement the SRA. Under Reagan/Bush/Billy Wilkins that's what it was, but it's been deteriorating ever since. The problem is that the SRA has no operating constituency (its authors, Thurmond and Kennedy now being gone), but a boatload of enemies, to wit, the defense bar (in particular the white collar defense bar), which was always a big (although quiet) presence on K Street but is now in full throat with their Democratic allies in total control. As with most things in Washington DC with no constituents and lots of enemies, it's going to be turned into a tool of its own destruction. And that's the real story with these proposed amendments.

Still, I note your suggestion of sending in public comments. But I think the correct address is:

1660 L St. NW, 12th Floor
Washington DC 20036
Attn: KSM Defense Fund

Posted by: Bill Otis | Jan 14, 2010 5:23:27 PM

Bill, two things:
You don't address the fact that the SRA itself suggests that the Commission (a) consider the relevance of these factors and (b) periodically re-evaluate the guidelines. You say these proposals are contrary to the SRA - how so? I've given you the cites. The fact that you dissagree with the tenor of these proposls doesn't make them contrary to the letter nor the spirit of the SRA's actual text.

Second, defense lawyers may well like to see these departure avenues opened up, but you haven't convinced me that a body that includes only one person who has ever worked as a defense lawyer, 4 former AUSA's, and a hanging judge from the valley is in the thrall of a totally disorganized band like NACDL.

Posted by: Ferris Bueller | Jan 14, 2010 11:16:11 PM

First, I wasn't referring to the witnesses at hearings (although they, too, are important). I'm talking about sentencing opinions written by a wide array of Republican and Democrat appointed judges who have for a long time felt the Guidelines do not consider relevant and important sentencing factors.

Second, I'm well of the orchestrating that goes on at these hearings, and I've attended them myself. And I'll note that some of the judges that testified at the most recent rounds of public hearings across the country were ardent Guideline supporters who have criticized the post-Booker world, but who have also recognized that the Guideline do, in fact, need updating.

Third, "arguments that would have had a tougher time under the Guidelines" ... that is Code for arguments that have always been valid and important sentencing considerations, yet the judge could not consider in sentencing pre-Booker.

Fourth, "Your being pleased with the new regime isn't because it's "updated." It is, of course, because of outcomes. Sentences are going to be lower -- or so you suspect, in all likelihood correctly." ... I hate to say it, but there you go again. Your modus operandi on this blog is to tell people what they are really thinking. And you're wrong in this instance (as I suspect you are in most instances when you do so). I genuinely believe that offender characteristics are an important part of sentencing. If that results in a higher sentence, then the sentence is more just. And we're better off for it. Now, as an attorney, that is not always better for my clients, but as a citizen it's better for our sentencing system.

Finally, unlike you, I'm not going to impart any unspoken, ulterior motivation onto you. But I think the reason most prosecutors dislike this updating of the Guidelines is because it makes their jobs harder. Before, the Guidelines have always resulted in high sentences, so upward variances are rarely (although sometimes are) warranted or sought. The only thing prosecutors needed to do was get out their accountant-like tables and tell the judge he/she had to sentence in that range, regardless of whether it was a just sentence. Now, more work must be done at sentencing, especially in light of often unnecessarily harsh Guidelines.

Posted by: DEJ | Jan 15, 2010 12:31:52 PM

Criminal defendants have a constitutional right to allocute.

The fact that sentencing hearings and alluctions routinely raise the same kind of character issues makes clear that from a "criminal justice as morality play" perspective, and intuitive moral relevance point of view these character issues need to be heard and evaluated to prevent the system from seeming unjust.

If allowing almost anyone who makes a meaningful effort can get a few good character Brownie points one way or the other, and that makes their testimony legally relevant and creates subjective buy in to the sentence by the people involved, then maybe anyone who makes a meaningful effort should be allowed to do so.

Penalizing people who don't even care to try to reduce their sentences, even if they could, may be a proxy way to identify people won't be responsive to the threat of further sanction if released.

Also, just because the guidelines allow offender specific factors to be put in the formula doesn't mean that they have to be very important. Indeed, putting a factor like age into the formula and then not assigning it many points in the formula effectively undermines the room a judge might otherwise have to use age as a basis for a departure. So, ironically, including more offender specific factors has the potential to make sentencing less offender specific. The devil is in the details.

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