The U.S. Sentencing Commission (USSC) has 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.

In April 2003, the USSC was directed by the newly-enacted PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, P. L. No. 108-21) to promulgate, within 180 days, guideline amendments that would "ensure that the incidence of downward departures is 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.

Congress directly amended the guidelines to restrict departures for penalties involving sex crimes and pornography targeting children. The Attorney General also issued new directives to the United States Attorneys regarding plea bargaining, appeals, and early disposition programs in all federal prosecutions.

In the new package of sentencing guideline amendments, which became effective October 27, 2003, the USSC:

• prohibited departures based solely on the existence of a plea agreement;
• 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);
• limited the availability of a departure based on family ties and responsibilities; aberrant behavior; and similar circumstances;
• significantly limited both the availability and the extent of departures permissible for certain offenders with substantial criminal history;
• implemented a directive authorizing limited departures pursuant to early disposition (fast track) programs authorized by the Attorney General and the U.S. Attorney;
• 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 USSC's ongoing monitoring of departure practice as well as appellate review.

The USSC will transmit a written report on the actions to Congress. Between now and November 1, 2004, the USSC will review the emergency amendments and, if appropriate, modify them for resubmission for final congressional approval as permanent amendments on or before May 1, 2004, as required by the Sentencing Reform Act.

Before amending the guidelines, the USSC solicited written comment and held two public hearings, the first on downward departures (September 2003 Third Branch), at which Judge David F. Hamilton (S. D. Ind.) testified on behalf of the Judicial Conference, and a second hearing on early disposition or "fast track" programs. Among the witnesses testifying at the second hearing were Chief Judge Marilyn L. Huff (S. D. Cal.) and Judge Lourdes Baird (C. D. Cal.).

Both told the USSC that fast track programs in their districts benefit both the government and the court system by relieving congestion.

In the Southern District of California, the Criminal Alien Fast Track Program addresses approximately 1,800 criminal aliens who re-enter the U.S. after deportation. A second fast track program in the district involves the early resolution of border drug cases.

"Absent significant changes in the law or prosecutorial policies," Huff said, "the district will continue to face a high volume of criminal felony cases and would benefit from an early disposition or fast track program as authorized by law."

Baird testified that prior to the initiation of a fast track program in the Central District of California, extensive pretrial motion practice and contested sentencing hearings were common. In the two years since the initiation of the program by the U.S. Attorney's Office, the number of program cases has increased approximately 20 times.

Departures or any other manipulation of the sentencing guidelines by the court are not involved. "The program," said Baird, "is based upon the exercise of prosecutorial discretion in charging by the U.S. Attorney's Office and the court's acceptance of the binding plea agreement..."

Also testifying at the hearing were Steven Hubachek, assistant federal public defender for the Southern District of California; Maria E. Stratton, federal public defender for the Central District of California; Paul K. Charlton, U.S. attorney for the District of Arizona; and Frank O. Bowman, professor of law at Indiana University School of Law.