Alan J. Chaset is a sole practitioner in Alexandria, VA. A co-Chair of the NACDL Post-Conviction and Sentencing
Committee, he is also one of the original members of The Champion Advisory Board.
As part of the still ongoing debate and discussion concerning the development and implementation of the sentencing guidelines, we continually have heard that Congress created the new commission to bring fairness, equity and honesty into the sentencing system. By structuring the decision-making of the federal judiciary, unwarranted disparity would be eliminated and "truth in sentencing" would be achieved. Put another way, the work product of the U.S. Sentencing Commission would help to insure that similar offenders who commit similar offenses will be treated similarly.
While few of us would argue with the appropriateness of that lofty goal, most of our experience with the guidelines during the last ten plus years has demonstrated that disparities of the clearly unwarranted variety still exist. Moreover, I believe that most of us would conclude that there continues to exist a great deal of unfairness and inequity in the federal sentencing system. And as to truth and honesty . . . "forget about it."
For me, one of the more blatant areas of unfairness and dramatic disparity can be observed in how the various districts have defined and implemented 28 U.S.C. 994(n) and U.S.S.G. 5K1.1: the statute and guideline providing for a departure from the otherwise applicable guideline range to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. How can it be that the prosecutors in one district (Eastern District of Pennsylvania) make 5K1.1 motions in nearly 50 percent of their cases when AUSAs in districts with approximately the same size dockets (Central District of California and Eastern District of Virginia) seek such a departure in only 7 percent of their sentences? How can it be that substantial assistance is rewarded with an average 88 percent sentence decrease in the Southern District of New York and an 82 percent decrease in the District of the District of Columbia when cooperation only gets a 44 percent decrease in the District of Maryland and a 47 percent reduction in the Western District of Texas? Are there that many more snitches in Philadelphia than in Los Angeles? Is the cooperation actually provided really worth nearly twice as much in New York City as it is in Baltimore?
According to a study recently undertaken by the U.S. Sentencing Commission, the above-cited inconsistencies are only the tip of the inequalities in the substantial assistance iceberg. The January 1998 report, Substantial Assistance: an Empirical Yardstick Gauging Equity in Current Federal Policy and Practice, describes the policies and practices of prosecutors and courts concerning downward sentencing departures pursuant to U.S.S.G. 5K1.1 and concludes that substantial assistance has not been given a consistent meaning throughout the country and, more importantly, that improper factors appear to influence the size and frequency of such departures. The research upon which the report is based "indicated that a crucial link underlying the concept of substantial assistance could not be established." More specifically, the document reveals that the "data reported were not able to find direct correlations between the type of cooperation provided, type of benefit or result received by the government, the making of the 5K1.1 motion, and the extent of the substantial assistance departure received."
As a consequence, the authors of the report (Linda Drazga Maxfield, acting director of the Office of Policy Analysis, and John H. Kramer, staff director) have concluded that the study reveals a four-faceted "equity problem" that merits additional research and significant programmatic change.
First, the analysis uncovered that "the definition of substantial assistance" was not being applied consistently across the various federal districts. Some forms of cooperation (undercover work, supplying tangible evidence, testimony at grand jury, assistance in prosecuting oneself rather than others, etc.) are considered in some, but not all, districts. Furthermore, the "components of a given behavior that classified it as 'substantial' were unclear."
Next, while the U.S. attorney offices have policies requiring them to record the reasons for making a substantial assistance motion, there are no provisions mandating that they reveal the information or criteria on which their decisions are based. This lack of opportunity for review is all the more problematic given the fact that prosecutors have complete control over whether the sentencing judge can even consider a downward departure here. Considering the fact that nearly one of every five federal cases sees such a motion, the authors of the study suggest it would be appropriate to require AUSAs to give a "statement of reasons" similar to the statements now required from trial judges concerning their reasons for sentencing at a particular point in the range or their rationale for granting a departure.
Third, Maxfield and Kramer note that "the evidence consistently indicated that factors that were associated with either the making of a 5K1.1 motion and/or the magnitude of the departure were not consistent with principles of equity." Factors that one would expect to influence decision-making here (e.g., type of cooperation, benefit of cooperation, defendant culpability or function, relevant conduct, offense type) were generally found to be inadequate to explain the results. "[M]ore worrisome" to the researchers was that "legally irrelevant factors (e.g., gender, race, ethnicity, citizenship) were found to be statistically significant in explaining 5K1.1 departures."
Finally, while the data demonstrates that offenders facing longer predeparture sentences receive a larger amount (more months) of departure, there was uncovered no evidence to support the conclusion that those defendants provided more, or more beneficial, cooperation to thus warrant the larger gesture from the court. The authors opine that it is now appropriate for "a philosophical debate that addresses the assumptions and ramifications of the absolute versus proportional approach" to departures: all defendants who cooperate at a given substantial assistance level should receive a set and absolute number of months reduction in sentence versus all defendants who cooperate at a given level should receive a proportional months reduction in sentence.
Although the opinions and conclusions contained in report are labeled as only those of the authors and "not necessarily" those of the Sentencing Commission and its Commissioners, I believe that this 34-page document is a most useful one to have in your library to cite or reference when discussing (and complaining about) substantial assistance departures with the government or the courts. You can get a copy from the Public Information Office at the U.S. Sentencing Commission, One Columbus Circle, N.E., Suite 2500, South Lobby, Washington, DC 20002-8002, (202) 273-4590. Or you can take a look and then download from the commission's website at http://www.ussc.gov/pdf/5kreport.pdf. While you're at it, you might also want to secure a copy of the May 1997 report prepared by the commission's Substantial Assistance Staff Working Group entitled "Federal Court Practices: Sentence Reductions Based on Defendants' Substantial Assistance to the Government" for a more detailed and complete exploration of this important guideline area.
Amendments Sent to Congress
The Sentencing Commission has promulgated, and forwarded to the House and Senate, several amendments to the Sentencing Guideline Manual which will take effect this November, unless legislation to the contrary is enacted. A brief summary of the more significant matters includes:
Sophisticated Concealment. The commission has developed a new enhancement to the fraud guideline at 2F1.1. The new specific offense characteristic -- the greater of two levels or an offense level of 12 -- will be applied if (a) the defendant relocated or participated in relocating a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials; (b) a substantial part of a fraudulent scheme was committed from outside the United States; or (c) the offense otherwise involved especially sophisticated concealment. Per a new application note, the term "sophisticated concealment" is defined to mean "especially complex or intricate offense conduct in which deliberate steps are taken to make the offense, or its extent, difficult to detect."
Additionally, three tax guidelines ( 2T1.1, 2T1.4 and 2T3.1) currently have a two level enhancement for using "sophisticated means" to impede discovery of the existence or extent of the offense with the term currently defined to "include conduct that is more complex or demonstrates greater intricacy or planning than a routine tax-evasion case." The commission has revised these enhancements to apply "if the offense involved sophisticated concealment . .." and defines that term as will now be contained in the fraud guideline.
Telemarketing Fraud. The commission has added another specific offense characteristic to the fraud guideline at 2F1.1 that will enhance the base by two levels "if the offense was committed through mass-marketing." New commentary defines that term rather expansively: it is meant to apply to "a plan, program, promotion, or campaign that is conducted through solicitation by telephone, mail, the Internet, or other means to induce a large number of persons to (a) purchase goods or services; (b) participate in a contest or sweepstakes; or (c) invest for financial profit."
National Cemeteries. An additional new enhancement has been provided to the theft guideline ( 2B1.1), the property destruction guideline ( 2B1.3) and the arson and property destruction by use of explosives guideline ( 2K1.4) that adds two levels if the offense was directed against the property of a national cemetery.
Firearms. Section 658 of the Treasury, Postal Service, and General Government Appropriations Act of 1997 amended 18 U.S.C. 922(d) to make it an offense to sell a gun to a person convicted of a misdemeanor crime of domestic violence and amended 18 U.S.C. 922(g) to make it an offense for a person convicted of a misdemeanor crime of domestic violence to transport or receive a gun in interstate commerce. In response, the commission revised the definition of "prohibited person" in 2K2.1 to include those convicted of such new crimes.
Additionally, the commission amended subsection (a) of 2K2.1 to increase the base offense level for a defendant who is convicted of selling a firearm to a prohibited person. The offense level for such a defendant will now be 20 if the firearm is a particularly dangerous firearm (one described in 26 U.S.C. 5845(a) or 18 U.S.C. 922(d)), and 14 otherwise. The fact the defendant sold to a prohibited person is an offense-of-conviction factor, not a relevant conduct factor. A defendant who sells to a prohibited person has an offense level of 12 unless the offense of conviction is 18 U.S.C. 922(d).
Failure to Appear. The commission amended 2J1.6 in response to United States v. Parker, 70 F.3d 357 (5th Cir. 1995) and to more closely comply with 18 U.S.C. 3146(b). Under that statute, a sentence of imprisonment imposed for failure to appear must run consecutively to the sentence imposed for any other offense. Section 3146(b) does not mandate a sentence to confinement, but does require that if a sentence of imprisonment is imposed, that sentence must run consecutively to any other sentence of imprisonment to which the defendant is subject.
The Parker court determined that the existing version of 2J1.6 defeated the statutory intent that a failure to appear offense be considered separate and distinct from the underlying offense, warranting a separate and distinct penalty. While retaining the existing (and most complex) rubric for determining the offense level through a combination of the grouping rules and the obstruction guidelines, the commission has promulgated some changes to the application notes to make it clearer that the methodology in 2J1.6 complies with statutory requirements.
Abuse of Position of Trust. Section 3B1.3 provides for a two-level increase in the offense level "if the defendant abused a position of public or private trust . . . ." The commentary to this guideline is being revised to permit the application of this adjustment to impostors -- to offenders "who provide sufficient indicia to the victim that they legitimately hold a position of public or private trust when, in fact, they do not." Two examples of circumstances in which this adjustment would apply are now provided.
Obstruction of Justice. Section 3C1.1 provides for a two-level increase when the defendant "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." The commission has now amended the guideline to address the circuit conflict regarding whether the term "instant offense" includes obstructions that occur in cases closely related to the defendant's case or only those specifically related to the "offense of conviction." As it will now read, 3C1.1 will apply if "the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely-related offense."
Obstruction of Justice. The commission has now addressed a second circuit conflict involving 3C1.1 over whether that guideline adjustment is to be applied if the defendant refuses to admit using drugs while on pretrial release. The commentary here has been amended to state that the adjustment ordinarily is not warranted for lying to a probation or pretrial services officer about using drugs while in a release status. But, language has also been added to note that such conduct may "affect the determination of whether other guideline adjustments apply (e.g., 3E1.1, Acceptance of Responsibility).
Grounds for Departure. The commission is amending the general departure policy statement at 5K2.0 to incorporate the principal holding and key analytical points from the Supreme Court's decision in Koon v. United States, 116 S. Ct. 2035 (1996). The language added to the commentary emphasizes the district court's discretion to depart from the otherwise applicable range.
Diminished Capacity. The current version of 5K2.13 would permit a downward departure where "the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants . . . provided that the defendant's criminal history does not indicate a need for incarceration to protect the public." Unfortunately, the commission failed to define or otherwise explain the term "non-violent offense," with a resulting division among the circuits as to what does and what does not constitute such a matter.
Responding to this disagreement and effectively expanding the applicability of this departure ground, the commission has amended 5K2.13 to now read:
A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant's offense indicates a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public. If a departure is warranted, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.
Finally, the commission amended the accompanying commentary here to define the term "significantly reduced mental capacity" to mean that "the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful."
As many of you may know, the list of potential amendments for this cycle included a series of proposals that would have dramatically impacted economic crimes (fraud, theft, tax, etc.) by ratcheting up the various tables, by adding definitions of many key terms and by providing other instructions on how to deal with or calculate certain aspects of loss. The Department of Justice and the federal judiciary were in favor of amending the tables to secure longer sentences particularly for larger frauds; the organized defense bar opposed those increases and argued strenuously for definitions and directions to be included in the package. In the end, none of the options or alternatives secured the requisite four votes to provide for passage. While this issue will not go away and while we have been "warned" that the next round of proposals might not be as "favorable" as the ones voted down this time, thanks are due to NACDL members Barry Boss and James Felman (among others) for their yeomen efforts in this regard.
Also on the docket this cycle were some proposals related to copyright and trademark infringement. Section 2(g) of the new Electronic Theft Act directs the commission to ensure that the applicable guideline range for a crime against intellectual property is "sufficiently stringent to deter such a crime" and reflects "the retail value and quantity of the items with respect to which the crime against intellectual property was committed." Despite significant lobbying from manufacturers and trade associations, the commission was not able to come close to agreeing on a guideline here and will be publishing two new proposals for comment for next year's amendment cycle. Please consider this summary as a request for any member with expertise (or familiarity) in this area to volunteer to review those proposals and assist in securing some fair product from the commission.
Vacancies Persist
The success we achieved in helping to defeat the proposals to increase guideline penalties for economic crimes was as much a consequence of the fact that there are only four commissioners as it was a result of the brilliant advocacy of Boss, Felman et. al. As you may know with Commissioners A. David Mazzone and Julie E. Carnes departing in November 1996 and Commissioner Wayne Budd resigning in May 1997, this is the second amendment cycle during which there were sufficient vacancies to require unanimity among the voting commissioners to secure passage of any guideline change. See 28 U.S.C. 994(a). And, with many, many still unfilled judicial vacancies and with many, many "distractions" diverting the President Clinton's attention and with an election looming on the horizon leaving very few legislative days to handle business, the short term prospects for resolution here remain bleak with a huge problem just around the corner.More specifically, Commissioners Deanell R. Tacha, Michael Goldsmith and Michael S. Gelacak are currently in a holdover status with that status ending on October 31, 1998 or whenever Congress adjourns. If the Clinton Administration and the Senate cannot get their acts together and agree on a slate of replacements, then in just a few months the commission will consist of one member -- Chairman Richard P. Conaboy -- and be totally unable to function at anything but managing the status quo.
Whatever your opinion about the commission and its guidelines, I believe that we all would agree that that entity can, and will, produce a better -- a fairer -- product than the alternative we will be facing come November 1998: having Congress craft all amendments and other changes to the guidelines and commentary.
And please remember, when the subject of filling the vacancies at the commission comes up during your appearances on Court TV or Geraldo or when you're on the links with Vernon Jordan or Orrin Hatch, that we need to amend 28 U.S.C. 991(a) and 235(b) of the Comprehensive Crime Control Act of 1984 to remove the Chairman of the Parole Commission as an ex-officio member of the commission and to substitute in that stead a representative of the federal criminal defense bar. NACDL has been actively seeking such a change for the last 10 years and the current circumstance may provide our best opportunity to advance the proposition.
We depend upon our readers for ideas and articles for this column. Please send your comments and editorial contributions to:
Grid & Bear It
Alan J Chaset
910 King St
Suite 200
Alexandria VA 22314
Phone (703) 683-3375
Fax (703) 684-9017