Collaboration Produces Improved Guidelines

On the first of May, the U.S. Sentencing Commission (USSC) sent Congress a sweeping list of proposed amendments to the U.S. Sentencing Guidelines. The amendments address several circuit conflicts of guideline interpretation, and touch on a variety of offenses, including consolidating existing guidelines on a number of economic crimes; retooling the use of mitigating role and the safety valve; providing greater proportionality for immigration and money laundering offenses; and increasing penalties for sexual predators, trafficking in Ecstasy, methamphetamine manufacturing, human trafficking, and domestic terrorism.

Some of the guideline amendments were directly related to legislation, such as the Ecstasy Anti-Proliferation Act of 2000, the Protection of Children from Sexual Predators Act of 1998, and the Victims of Trafficking and Violence Protection Act of 2000. Other guideline amendments were responses to concerns raised by federal judges, prosecutors, probation officers, and practitioners regarding sentences imposed for white collar offenses, economic crimes in particular.

Commission Chair Judge Diana E. Murphy (8^th Cir.) said, "The unanimous vote of the commissioners to adopt the economic crime amendments is the result from several years of extensive research conducted by the Sentencing Commission in which the experience of countless professionals was consulted. Because approximately 20 percent of all federal defendants are subject to these economic crime guidelines, it was especially important that we be responsive to the express needs of the federal Judiciary in this area."

The economic crime amendment package was aided by a unique collaboration with the Judicial Conference Committee on Criminal Law that began when the Committee proposed to the USSC that it revise the loss tables. At the suggestion of then-USSC chair, Judge Richard P. Conaboy (M.D. Pa.), work also started on developing a new definition of loss that would be simpler and easier to apply and on consolidating a patchwork of different theft, fraud, and property destruction guidelines into one.

"The greatest concern, at the time," said Chief Judge George P. Kazen (S. D. Tex.), former chair of the Criminal Law Committee, "was that with the old loss table and definition, offenders did not receive proportionally more severe sentences with the greater amounts of loss. The proposed changes would eliminate that inconsistency."

In 1998, the Conference Committee on Criminal Law members included Judge William W. Wilkins, Jr. (4^th Cir.), the first chair of the USSC; he now is chairman of the Committee on Criminal Law. It was Wilkins who suggested field testing of the loss definition. Kazen appointed a subcommittee under Judge J. Phil Gilbert (S.D. Ill.) to work with the commission to perform the field testing.

"The USSC and the committee developed a new loss definition, which our committee members, with probation officers from each of our courts, applied to a group of previously decided cases," said Gilbert, "some of which were randomly selected, some proposed by the judges, and one that was a hypothetical case.

The cases then were scored using the proposed and the current definition. "We wanted to see if the definition made a difference in sentencing; if it made it easier to apply guidelines or if there were significant differences in sentencing levels, either up or down," said Kazen.

According to Gilbert, the testing was invaluable, working out several bugs in the proposed definition. "We probably wouldn't have the definition today," he said, "if we didn't have the field testing. It was a tremendous cooperative effort between the USSC and the committee, with their respective staffs."

"It was a unique collaboration," agreed Kazen. "We were working toward a common goal."

At the April meeting in 2001, USSC Vice-chair Judge Ruben Castillo (N.D. Ill.) thanked his colleagues on the Judicial Conference Criminal Law Committee, calling the economic crime package the culmination of a three-year process. "What this really does is bring more focus, definition, and hopefully increases the ease of application to an important area of federal criminal law," he said. The Commission made the economic crime package a cornerstone of its work this amendment cycle.

The economic crime package amendments to the sentencing guide-lines and other amendments will take effect November 1, 2001, unless Congress acts to modify them.