Vol. 36, Number 1—January 2004

VI. The United States Sentencing Commission

During the last year, the United States Sentencing Commission spent much of its time responding to a number of congressional directives related to major crime legislation. The Commission unanimously approved amendments to the federal Sentencing Guidelines implementing provisions of the USA PATRIOT Act regarding terrorism offenses, the Sarbanes-Oxley Act involving white collar frauds, the Bipartisan Campaign Reform Act concerning election law violations, the Homeland Security Act regarding cybersecurity and attacks on critical infrastructure, and the PROTECT Act.

Along with the amendment implementing the PROTECT Act directive, the Commission submitted a report to Congress that closely examines the rate of downward departure from the guidelines. The Act directed the Commission "to ensure that the incidence of downward departures are substantially reduced" and to allow for early disposition programs as authorized by the Attorney General. The report concluded that the downward departure rate has increased from 5.8 percent in Fiscal Year 1991 to 18.1 percent in Fiscal Year 2001. Approximately 40 percent of the downward departures granted in Fiscal Year 2001 were government initiated. If all of the government initiated downward departures were excluded, the departure rate would be about 10.9 percent. In preparing the report, the Commission considered an analysis of the sentencing documents submitted to it by the courts, the case law involved, the record from a series of public hearings held by the Commission, public comments received from solicitations published by the Commission in the Federal Register, and the input of the bench and bar in several parts of the country where the Commission conducted training sessions for judges and practitioners.

Two ad hoc advisory groups, one on the organizational Sentencing Guidelines and one on Native American sentencing issues presented their final reports and recommendations to the Commission last fall. The Organizational Guidelines Group, chaired by former United States Attorney B. Todd Jones of Minnesota, recommended amending the existing organizational guidelines in order to reflect contemporary legislative, regulatory, and corporate governance requirements. On November 5, the Commission voted to publish for public comment a proposed Sentencing Guideline's amendment that incorporates the specific recommendations of the advisory group with final action anticipated by May 1, 2004.

The Advisory Group on Native American Sentencing Issues was chaired by Chief Judge Lawrence Piersol of the United States District Court for the District of South Dakota and included a number of individuals who are enrolled tribal members. The advisory group was formed in response to concerns regarding the impact of the federal Sentencing Guidelines on Native Americans sentenced under the Major Crimes Act. The group's final report concludes that the sentencing impact on Native Americans resulting from federal criminal prosecution varies from offense to offense and among jurisdictions. The report and recommendations of each group can be found on the Commission's Web site (www.ussc.gov).

On September 2, 2003, the Commission adopted its policy priorities for the amendment cycle ending May 1, 2004. The priorities include responding to the PROTECT Act directive and consideration and implementation of the recommendations made by the two ad hoc advisory groups. The Commission also is continuing its work in a number of other areas, including terrorism, manslaughter and assault, sex offenses and child pornography, immigration offenses, public corruption, and criminal history, as well as its work on a study geared toward analyzing the guidelines in light of the goals of sentencing reform described in the Sentencing Reform Act and the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2).

Based upon a recent General Accounting Office report, Federal Drug Offenses: Departures from Sentencing Guidelines and Mandatory Minimum Sentences: Fiscal Years 1999-2001 (October 2003), that recommended improving document submission and tracking by the courts and the Commission, a coordinated effort is underway by the Administrative Office of the U.S. Courts, the Federal Judicial Center, and the Sentencing Commission to review relevant standardized documents and training of court personnel.

Two preexisting vacancies on the Commission were filled on June 25, 2003, when United States District Judge Ricardo H. Hinojosa and former Deputy Assistant Attorney General Michael E. Horowitz were sworn in as Commissioners. On October 31, 2003, the terms of one other Commissioner, Michael E. O'Neill, and two Vice Chairs, United States District Judge Ruben Castillo and Chief Judge William K. Sessions, III, expired. The President nominated Chief Judge Sessions for reappointment, and the nomination was approved by the full Senate on December 10, 2003. Commissioner O'Neill and Vice Chair Castillo continue to serve under the governing statute until Congress adjourns sine die or new Commissioners are appointed. I encourage the President to complete the nomination process for the remaining two positions and hope the Senate will timely act on the appointments.

NEXT—VII. Conclusion