SECTION: CAPITOL HILL HEARING TESTIMONY

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HEADLINE: TESTIMONY March 22, 2000 DIANA E. MURPHY CHAIR UNITED STATES SENTENCING COMMISSION HOUSE APPROPRIATIONS COMMERCE - JUSTICE STATE APPROPRIATIONS COMMERCE JUSTICE STATE APPROPS

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STATEMENT OF DIANA E. MURPHY, CHAIR UNITED STATES SENTENCING COMMISSION BEFORE THE HOUSE COMMITTEE ON APPROPRIATIONS, SUBCOMMITTEE FOR COMMERCE, JUSTICE, STATE, THE JUDICIARY, AND RELATED AGENCIES March 22, 2000 INTRODUCTION Mr. Chairman, members of the Committee, thank you for the opportunity to submit a statement on behalf of the United States Sentencing Commission's Fiscal Year 2001 appropriation request. As you know, on November 15, 1999, a full complement of seven voting commissioners was appointed to the Commission, and I am proud to serve as Chair of this important agency. We take our new responsibilities so seriously that we met the day after our appointment in Washington, D.C., for two days and adopted a very ambitious agenda we hope to accomplish this amendment cycle. As a group, we bring a great deal of experience and several different perspectives to our new job. We look forward to strengthening the good working relationship with Congress and others in the federal criminal justice community. Among the seven voting and two non-voting members of the Commission, five of us are federal judges, three of us have prosecutorial experience, two of us have criminal defense experience, two of us formerly were police officers, several of us have had prior experience working as congressional staff, and one of us has spent a number of years as general counsel for the Commission. Our appointment ended an extended and unprecedented period of more than a year, during which time the Commission was without any voting commissioners. Unfortunately, these vacancies have had the effect of significantly decreased appropriations for the Commission and have created staffing shortages that have gone unaddressed. During the appropriations process for fiscal year 2000, there was substantial uncertainty as to the requirements for the Commission due to the commissioner vacancies. As a result, the Commission's budget was reduced to $8,468,000 for fiscal year 2000, an II percent decrease from fiscal year 1999 and the lowest appropriation for the agency since fiscal year 1994. Regrettably, the cutback comes at a time when the agency bears an extraordinarily heavy workload due to the extended absence of commissioners and the many legislative directives that await Commission implementation. During that period, of course, the Commission could not fulfill its most important ongoing statutory responsibility under the Sentencing Reform Act, that is, to update and promulgate amendments to the sentencing guidelines for federal offenders. As a result, a significant backlog of crime and sentencing related legislation has accumulated that must be addressed by the new Commission. In light of the circumstances we face, the Commission requests an appropriation of $10,600,000 for fiscal year 2001, the same as requested last year. This funding level is the bare minimum necessary to enable the Commission to restore staff levels to that of fiscal year 1998, the last year the agency had a fully functional Commission in place, and to fulfill all of our many statutory responsibilities. Without an adequate budget, we cannot effectuate the will of Congress as expressed in a number of important legislative items that await Commission implementation. Since our November 15, 1999, appointment, we have undertaken a very full agenda in this abbreviated amendment cycle, addressing many legislative directives and circuit conflicts in guideline interpretation. We are hard at work and hope that Congress will reaffirm its belief in the mission of the Commission and its confidence in us by restoring the Commission's funding to an adequate level. RESOURCES REQUESTED The Commission's budget request is for $10,600,000. The Commission now has 20 percent less staff than in fiscal year 1998, and nearly 70 percent of the requested increase ($1,487,000) is for restoration of personnel. More than 30 percent of the requested increase ($595,000) would fund adjustments needed to pay employees to continue current operations; these are mandatory adjustments in salaries and benefits and slight inflationary increases ($78,000) in some non- personnel expense categories. The amount needed to restore our ability to function effectively is made up of "Adjustments to Base." $595,000 is requested for pay and benefit cost adjustments $78,000 is requested for inflationary increases for non-personnel operating expenses $1,487,000 is requested for restoration of personnel ($28,000) for one less compensable day The requested amount is an increase of $2,132,000 from the Commission's fiscal year 2000 appropriation, but that appropriation was an anomaly from previous years and came at a time when the Commission had no voting commissioners. In terms of total obligations, the agency has a funding level of $9,553,000 for fiscal year 2000 by combining the appropriations with remaining carryover money earmarked for this fiscal year. Compared to this figure, the fiscal year 2001 request represents an increase of only $1,047,000 (approximately II percent) over resources available in fiscal year 2000. JUSTIFICATION Sentencing Reform Act Requirements The Commission was created under the Sentencing Reform Act of 1984 as a permanent, independent agency within the judicial branch. Congress gave the Commission a dual mission. The most urgent at the time was to establish federal sentencing policies and practices that (i) serve four purposes of sentencing: just punishment, adequate deterrence, protection of the public from further criminal conduct, and rehabilitation of offenders; (ii) provide certainty and fairness in sentencing; and (iii) avoid unwarranted sentencing disparities among similarly situated offenders. The Commission was organized in October 1985, and in just 18 months, established the first comprehensive set of determinate sentencing guidelines ever created for the federal judicial system. The federal sentencing guidelines became effective on November 1, 1987, for offenses occurring on or after that date, and since their implementation have been used to sentence more than 400,000 defendants. The Commission believes that the federal sentencing guidelines have advanced the goals of Congress as expressed in the Act by providing certain, fair, and markedly more uniform punishment for similar offenders, which in turn has strengthened the ability of the criminal justice system to combat crime. The Sentencing Reform Act also assigned to the Commission another mission critical to the federal criminal justice system: to serve as an expert agency on federal sentencing matters.- To fulfill this ongoing mission, the Commission was given continuing responsibility and authority in many areas, including - (1)establishing sentencing policies and practices that assure that the purposes of sentencing are met, that provide certainty and fairness in meeting those purposes of sentencing, that avoid unwarranted sentencing disparities while maintaining enough flexibility for individualized sentences when those are warranted, and that reflect advancements in our knowledge of human behavior as it relates to the criminal justice process; (2)developing means to measure the effectiveness of sentencing, penal, and correctional practices in meeting the purposes of sentencing; (3)promulgating and updating sentencing guidelines for federal offenders; (4)monitoring the performance of probation officers regarding sentencing recommendations, including application of the guidelines; (5)issuing instructions to probation officers concerning the application of the guidelines; (6)establishing a research and development program within the Commission to serve as a clearinghouse and information center for information on Federal sentencing practices; (7)consulting with federal courts, departments, and agencies in developing, maintaining, and coordinating sound sentencing practices; (8)systematically collecting data from studies, research, and the empirical experience of public and private agencies concerning the sentencing process; (9)publishing data concerning the sentencing process; (10)systematically collecting and disseminating information concerning sentences actually imposed on more than 55,000 cases sentenced in the Federal district courts each year (and on about 1,000 appellate decisions on sentencing) and the relationship of those sentences to the factors judges are required to consider under 18 U.S.C. 3553(a); (11) systematically collecting and disseminating information regarding the effectiveness of sentences imposed; (12)conducting seminars and workshops around the country to provide continuing studies for people engaged in the sentencing field; (13) conducting periodic training programs for judicial and probation personnel and other persons connected with the sentencing process; (14) studying the feasibility of developing guidelines for juvenile offenders; (15) making recommendations to Congress on changes that might be made to statutes relating to sentencing, penal, and correctional matters that would help to carry out effective, humane, and rational sentencing policy; (16)holding hearings and calling witnesses to assist the Commission in the exercise of its powers and duties; (I 7) recommending any changes in prison facilities that may be necessary because of the sentencing guidelines; and (I 8) performing any other functions necessary to permit federal courts and others in the federal criminal justice system to meet their responsibilities in the sentencing area. Newly Appointed Commissioners Face Critical Backlog of Legislation Although the Commission staff was able to carry out many of these important statutory duties during the extended absence of voting commissioners, the agency could not amend the sentencing guidelines to implement recently enacted crime and sentencing- related legislation. As a result, the newly appointed Commission faces a significant backlog of legislation that waits review and implementation by the agency. The newly minted Commission has made addressing these items its first priority for the current guideline amendment cycle, which ends May 1, 2000. The legislative matters that await Commission action cover a wide range of criminal conduct that is of great concern to Congress and other members of the federal criminal justice system: Intellectual Property Offenses - In response to the No Electronic Theft ("NET") Act of 1997, the Commission released a staff report on the NET Act and recently requested and received public comment on three alternative proposals that would amend the copyright and trademark infringement guideline to ensure that the guideline is sufficiently stringent to deter such offenses and that it provides for consideration of the retail value of the infringed item. The Commission continues to analyze and develop possible amendments to the guideline and, pursuant to the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, must promulgate a temporary emergency amendment in response to the NET Act by April 6, 2000. Telemarketing Fraud - In response to the Telemarketing Fraud Prevention Act of 1998, the Commission promulgated temporary amendments to the guidelines that provide for three separate sentencing enhancements for fraud offenses that involve mass marketing, a large number of vulnerable victims, and the use of sophisticated means to carry out the offense. The Commission must review and repromulgate the emergency amendments as permanent amendments by May 1, 2000, or they will expire by November 2000. Telephone Cloning - In response to the Wireless Telephone Protection Act of 1998, the Commission recently released a staff report on cell telephone cloning and requested public comment on proposed options for amending the guidelines to provide an appropriate penalty for these offenses. Identity Theft - In response to the Identity Theft and Assumption Deterrence Act of 1998, the Commission recently released a staff report on identity theft and requested public comment on amending the guidelines to provide an appropriate penalty for each offense under 18 U.S.C. 1028 (relating to fraud in connection with identification documents). Protection of Children - In response to the Protection of Children from Sexual Predators Act of 1998 and certain provisions of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1998, the Commission has recently released a staff report on sexual offenses against children and requested public comment on a number of options for amendments to the guidelines pertaining to certain sexual abuse offenses and distribution of child pornography. Possible amendments being considered include an enhancement for use of a computer in connection with a sexual abuse offense against a minor and misrepresentation of an offender's identity in connection with such an offense. Methamphetamine Trafficking - Although the Metharnphetamine Trafficking Penalty Enhancement Act of 1998 contains no directive to the Commission, the Commission recently released a staff report on methamphetamine trafficking and requested public comment on an amendment to the guidelines' drug quantity table that would account for the increased penalties for manufacturing, importing, or trafficking in methamphetamine imposed by the Act. The Act reduced by one-half the quantity of methamphetamine required to trigger various mandatory minimum sentences in the drug statutes. Firearms Offenses - In Public Law 105-386, Congress amended 18 U.S.C. 924(c) to create a tiered system of sentencing enhancements, (each with a mandatory minimum and presumed maximum) in cases in which a firearm is involved in a crime of violence or drug trafficking offense. The pertinent minimum sentence in that tiered system is dependent on whether the firearm was possessed, brandished, or discharged. The Act also changed the statutory definition of "brandish." These legislative changes will require a number of amendments to the guidelines, including amendments that incorporate the tiered statutory sentencing scheme into the guideline pertaining to Section 924(c). In response to this new legislation, the Commission recently released a staff report on firearms offenses and requested public comment on a number of proposals for amending the guidelines. The Commission also is undertaking a longer term comprehensive examination of the firearms and explosives guidelines to make them more internally consistent with other similar guideline provisions and to generally improve their operation. Circuit Conflicts - In addition to these legislative items, a large number of conflicts among the United States Circuit Courts of Appeal regarding interpretation of the guidelines accrued during the absence of voting commissioners. In Braxton v. United States, 500 U.S. 344 (1991), the United States Supreme Court unanimously acknowledged that the Commission has the initial and primary task of eliminating conflicts among the circuit courts with respect to statutory interpretation of the guidelines. Accordingly, the Commission has set addressing a limited number of the most significant conflicts as another priority for the current guideline amendment cycle. This amendment cycle the Commission is working on circuit conflicts regarding (i) the circumstances for which a court may downward depart from the sentencing guideline range for aberrant behavior; (ii) whether the enhanced penalties in 2131.2 (Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals) apply only when the defendant is convicted of an offense referenced in that guideline or, alternatively, whenever a defendant's relevant conduct included drug sales in a protected location or involving a protected individual; (iii) whether the enhancement in the fraud guideline for violation of a judicial or administrative order, injunction, decree, or process applies to falsely completing bankruptcy schedules and forms; (iv) whether sentencing courts may consider post-conviction rehabilitation while in prison or on probation as a basis for downward departure at resentencing following an appeal; and (v) whether a court can base an upward departure on conduct that was dismissed or uncharged as part of a plea agreement. Other Crime Legislation - In fiscal year 2001, in addition to completing any carryover items from the items listed above, the Commission hopes to expand its policy development to include responding to other crime legislation pertaining to nuclear, chemical, and biological weapons, specifically the Chemical Weapons Implementation Act of 1998, and the sense of Congress expressed in the National Defense Authorization Act for Fiscal Year 1997. The Commission is planning to conduct a comprehensive review of the guidelines pertaining to importing and exporting nuclear, biological, and chemical weapons to determine whether any amendments to the guidelines are warranted. The Commission hopes to complete this work in 2001. Economic Crime Guidelines-Also in fiscal year 2OOl, the Commission hopes to complete a comprehensive reassessment of the economic crime guidelines that was begun by the last Commission. Economic offenses account for more than a quarter of all the cases sentenced in the United States federal district courts. The prior Commission had received from the Federal Judiciary and the Department of Justice testimony and survey results that indicated that the sentences for these offenses were inadequate to punish appropriately defendants in cases in which the monetary loss was substantial. After approximately one year of data collection, analyses, public comment, and public hearings, the Commission developed a comprehensive 44 economic crime package" designed to revise the loss tables for fraud, theft, and tax offenses in order to impose higher sentences for offenses involving moderate and large monetary losses. Related amendments would consolidate the theft, fraud, and property destruction guidelines and clarify the definition of loss for selected economic crimes. Working in conjunction with the Criminal Law Committee of the Judicial Conference, the Commission conducted a field test of the proposed loss definition by surveying federal judges and probation officers and applying the new definition to actual cases. Among the findings from the field test, more than 80 percent of the judges stated that the proposed loss definition produced results that were more appropriate than the current definition. The Commission expects that the groups interested in the economic crime package (e.g., the Department of Justice, the Criminal Law Committee of the Judicial Conference, and the American Bar Association) will renew their recommendations that this package be a top priority for 2001. Accordingly, the Commission has planned an Economic Crimes Symposium in October 2000 to further advance sentencing policy development and knowledge with respect to economic crimes. Restoration of Personnel Needed to Meet Statutory Duties Fulfilling all of the agency's responsibilities has been extremely difficult recently because of the absence of voting commissioners for more than one year, which has had the unfortunate effect of decreased appropriations and have created staffing shortages that have gone unaddressed. Beginning in the first month of fiscal year 1999, the Commission was without any voting commissioners and this status continued through the first quarter of fiscal year 2000. In anticipation of a significant reduction in funding as a result of this unfortunate status, and the uncertainty about when the vacancies would be filled, the Acting Staff Director for the Commission determined it prudent to institute a defacto hiring freeze. The hiring freeze, coupled with the agency's normal attrition rate, has reduced the current staffing levels from that of fiscal year 1998 by twenty percent. The Commission has coped with the austere budget and staffing shortages in large part by extending deadlines for policy development projects beyond the annual guideline amendment cycle ordinarily used by the Commission to timely implement crime legislation. In so doing, the Commission has been able to maintain its routine training, research, monitoring, and publications schedule throughout the year. However, this was a short-term measure that was made possible only by the anomaly of not having any voting commissioners for more than one year. Now that a full complement of commissioners is in place, policy development deadlines can no longer be prolonged and, in fact, must be shortened in order to address the backlog described above in a timely manner. While the commissioners work to reduce the backlog of unimplemented crime legislation and to consider the policy development reports prepared by staff, the human resource needs of the agency will increase as the routine annual amendment cycle is reestablished, new policy initiatives are identified by the reconstituted Commission, and new crime legislation is enacted by Congress. Indeed, there is pending legislation relating to juvenile justice, firearms offenses, and certain drug offenses, which, if enacted, would require significant Commission resources to implement. In order to become a fully functional agency that performs all of its statutory functions in an exemplary manner, a restoration of personnel is necessary, particularly in the following areas: Reestablishment of Statutorily Required Research and Monitoring Functions The Commission maintains a comprehensive, computerized data collection system which forms the basis for its clearinghouse of federal sentencing information. This comprehensive database is the basis for the Commission's monitoring and evaluation of guidelines application, for many of its research projects, and for responding to the hundreds of data requests received from Congress and other criminal justice entities each year. In fiscal year 1999, the Commission received court documents for more than 55,000 cases sentenced under the Sentencing Reform Act between October 1, 1998, and September 30, 1999. For each case, the Commission extracts and enters into its comprehensive database more than 260 pieces of information, including case identifiers, sentence imposed, demographic information, statutory information, the complete range of court guideline application decisions, and departure information. The Commission also tracks final opinions and orders, both published and unpublished, in federal criminal appeals. The Commission gathered information on more than 6,000 appellate court cases in fiscal year 1998 and now has an appeals dataset containing information on more than 38,000 appeals. Information captured in this database includes district, circuit, dates of appeal and opinion, legal issues, and the court's disposition. The appeals database informs the Commission regarding the frequency with which specific guideline issues are appealed, informs Congress and the criminal justice community about court action related to the guidelines, and enables the Commission to identify and, where appropriate, resolve circuit conflicts pertaining to application of the guidelines. The Commission continues to see a substantial increase in the number of cases sent to the agency that must be entered into its comprehensive database. The current data entry organizational structure and physical facilities were designed to accommodate approximately 35,000 to 45,000 cases annually. However, for the past three years, the agency has received more than 50,000 case files, with a projected caseload of 56,000 for fiscal year 2001. Funding for three vacant data entry positions is requested to process these cases. In addition, the Commission requests funding- to fill a key vacancy, the Chief Data Quality Analyst position, and to provide for an additional junior Data Quality Analyst position, in order to preserve the integrity of its comprehensive database. The Commission continues to advance its statutorily directed research and information dissemination. Each year since the inception of the guidelines, the Commission has published an updated Guidelines Manual and an Annual Report and accompanying Source book of Federal Sentencing Statistics which serve to inform and advance knowledge of sentencing in the criminal justice community. In recent years, the Commission launched two new publications, Guide to Publications and Resources and The Year in Review, and continued to add a variety of publications and sentencing data to its popular Internet web site. Working with the American Society of Criminology, the Commission recently prepared and presented a number of research papers on important topics of current interest such as federal and state counterfeiting offenses in the computer age, federal sentencing practices for immigration offenses, prison verus alternative confinement, and the effects on federal sentencing of the changing mix of policies, crimes, and criminals. Commission staff have identified a number of future research projects that for consideration, including an analysis of sentence proportionality under the guidelines, the violent offense guidelines, the effectiveness of criminal history assessment within the guidelines, classifying offender function in drug trafficking offenses, patterns in offender recidivism under the guidelines, and the effectiveness of offender incapacitation under the guidelines. The ability of the Commission to continue its important research, however, is imperiled by a depletion of its research staff. During this recent period of attrition, a significant portion of the intermediate tier of researchers and all of the lower tier research associates left the agency. Thus, the Commission requests funding to fill three Research Associate and three Junior Research Associate positions, as well as the critical position of Director of Research. Without the funding necessary to fill these key positions, the agency's ability to critically analyze sentencing patterns and practices, to respond to inquiries about the effectiveness of sentencing policies, and to assess the impact of proposed guideline amendments and new sentencing related legislation will be severely limited. Maintaining the Agency's Statutory Commitment to Sentencing Education The Commission continues its commitment to providing high quality training and assistance to judges, prosecutors, probation officers, and defense attorneys as required by the Sentencing Reform Act. In 1999, Commission staff provided training on the sentencing guidelines to more than 2,500 individuals at 47 training programs across the country, including ongoing programs sponsored by the Commission, the Federal Judicial Center, the Department of Justice, the American Bar Association, and other criminal justice agencies. The Commission also maintains a telephone HelpLine service to answer case-specific guideline application inquiries from federal judges, probation officers, prosecuting and defense attorneys, and law clerks. The Commission responds to approximately 250 such inquiries each month. If the Commission is not provided sufficient funding to restore personnel in other areas of the agency, its quality of training will suffer because its training staff may have to be utilized for more pressing projects as they anise. To further expand the availability of training and information sharing, the Commission has joined the Federal Judicial Center and the Administrative Office of the U.S. Courts in launching a satellite television network to provide cutting-edge programming on sentencing- related issues to an even broader audience. The Commission makes a regular contribution to a news series for probation and pretrial services designed to update officers on important information regarding the Commission and its activities. In 2001, the Commission plans to increase its involvement in the delivery of training via the television network as a cost-effective means of supplementing its existing training efforts. As part of its efforts to reach out to organizations that are not yet familiar with the organizational sentencing guidelines' emphasis on compliance, self-policing, and crime reporting, the Commission and the Ethics Officer Association (EOA) in 1999 jointly sponsored a series of day-long regional forums about implementing these guidelines. The EOA is a non- profit peer organization comprising ethics and compliance officer representatives of for-profit and non-profit organizations. Its primary objective is to share "best practices" for ethics and compliance programs among members through peer-to-peer networking, library services, and educational efforts. The Commission tentatively has scheduled an Organizational/Corporate Guidelines Symposium in October 2001 to advance further its efforts in this important area. Informing Congress Each year the Commission also informs Congress's legislative deliberations by responding to hundreds of congressional requests for assistance. These inquiries, both written and oral, include requests for federal sentencing and criminal justice data, analyses of proposed legislation, explanations of guideline operation, technical assistance in drafting legislation, and Commission publications and resource materials. With a full complement of new commissioners in place, the agency expects its overall activity will intensify, and requests from Congress and the public will greatly increase. As a result, the Commission needs to improve its congressional liaison activities and requests two positions for this effort. Rebuilding Administrative Support Beginning in fiscal year 1996, the Commission began a long range software upgrade to the automation system used to maintain its sentencing database. This work is substantially complete. During the recent period of attrition, however, the agency's lead programmer retired, leaving a contractual relationship with Oracle Corporation as the only guard against a systems failure. If a major failure should occur, it would cause a work stoppage involving approximately 30 data entry employees, possibly over an extended period of time. Therefore, the agency requests funding to hire an automation technician/programmer as well as a lower level database administrator to maintain the new system. Also as part of its statutory duty to serve as a clearinghouse of sentencing related information, the Commission maintains a highly specialized collection of sentencing related literature that has been built up over the past ten years. That important collection has gone unattended (other than by intermittent temporary services) since the agency's librarian and assistant librarian resigned during the period with no commissioners. The agency requests funding to fill these two positions in order to maintain the integrity of its collection. Other administrative positions that require filling include a support position shared by two offices, the Legislative and Public Affairs Offices, and a personnel specialist in the Human Resources Office. Filling all of these requested positions would not require revising the Commission's full time equivalency ceiling of 108 employees. Rather, the Commission merely seeks the restoration of funds for currently existing but vacant positions. SUMMATION In sum, the Commission is asking for sufficient funding so that we can perform our many statutory obligations and fulfill our important role in combating crime by maintaining an effective, certain, and fair sentencing system.

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