UNITED STATES SENTENCING COMMISSION Public Hearing on Organizational Sanctions 0 United States Court of Appeals - Pasadena, California Friday, December 2, 1988 9 a.m. Judge William W. Wilkins, Jr., Chairman Opening Remarks 9:05 - 9:25 Paul Thomson Deputy Assistant Administrator for Criminal Enforcement Environmental Protection Agency 9:30 - 9:50 Arthur N. Levine Deputy Chief Counsel for Litigation, Food and Drug Administration 9:55 - 10:15 Jan Chatten-Brown Special Assistant to the District Attorney, Los Angeles County 10:20 - 10:40 Robert M. Latta Chief U.S. Probation Officer, Central District of California 10:45 - 11:05 Robert A.G. Monks President, Institutional Shareholders Services 0 11:10 - 11:30 Christopher Stone Professor, University of Southern California Law Center 11:35 - 11:55 Richard Gruner Associate Professor, Whittier College School of Law LUNCH 1:30 - 1:50 Charles B. Renfrew Vice President, Chevron 1:55 - 2:15 Jerome Wilkenfeld Health, Environment & Safety Department, Occidental Petroleum 2:20 - 2:40 Bruce Hochman, Esq. Hochman, Salkin & DeRoy, Beverly Hills, CA 2:45 - 3:05 Ivan P'ng Assistant Professor, University of California School of Management Eric Zolt Acting Professor of Law, UCLA School of Law 3:10 - 3:30 Maygene Giari I Citizens United for the Reform of Errants (CURE) ! Board ol Dlreotom Executive Director nd Administrator Don Taylor Gllaiplon Charles nd Pauline Sullivan Donna Leone Hamm National Omen: CURE t11mhSLNElB Washington. DC 20002 Phone: @2-$£3-8399 Jim nth Cindy Soagllune Don H. Weaver CITIZENS UNITED FOR REHABILITATION OF ERRANTS Ted West Mary Wathen White "A National Effort to Reduce Crime Through Criminal justice Reform" Lois A. Williamson - Advleore Al Bronetein November 18, 1988 Mygeno Gian Daniel Johnson Alan Pogue Milton G. Hector Comments Regarding Edgardo Hetman Diana Y. Rust-Tirney Discussion Materials on William Bennett Turner Organizational Sanctions Henry Scott Wallace Chapters Alabama District ot Columbia For: Testimony before the Sentencing Commission Massachusetts December 2, 1988, Pasadena, California Michigan Ohb Pennsylvania By: Maygene South Dakota Giari Texas 1015 Nithsdale Road Virginia Pasadena, CA 91105 Contact Chapters Tel. 818 449- 2498 Colorado. iowa. Maine. Minnesota. Mississippi. Netrada. North Dakota. Nebraska, I am a member of and advisor to CURE, Citizens United for the Oklahoma. South Carolina. , West Virginia Rehabilitation of Errants. My interest in criminal justice grew out Affiliates hadtles. Diocese BWHGMHWUW of my initially reluctant participation in a League of Women Voters' Incarcerated: rt and Services (Rochester. NY) study oklahoma's prison system. The league believes in informed Families and Friends of of Persons ln Prison (Missouri) Families of Prisoners Coalition (NUNN) citizen participation in government; the first workshop I attended Inside-out: Citizens United tor Prison Fleloml. Inc. (Connecticut) made me realize how badly misinformed I had been about the effectiveness Justice NlinislrylLulheran Social Services ol Illinois Middle Ground [Arizona) of the criminal justice system. Oregon People lot Prison Altemathnss - Now York Slate Coalition A graduate of the Columbia University School of Library Science, for Criminal Justice. Inc. Rhode Island Justice Alliance Very Special Persons (indiana) with experience both as a research librarian and as a - researcher, I Public Ollloll Sponsors Sm.GmWnN;Hmbk have been studying the criminal justice system for fifteen years. Sen. John F. Kew Cong. Daniel lt. Malta Cong. Jim Bates Cong. Howard L. Berman Realizing that much of the public is probably as badly misinformed as Cong. John Bryant Cong. Albert G. Bustamante Cong. William L. Clay I had been, I am incorporating my findings in a book, "The Same Wrong Cong. Ronald 0. Coleman Cong. John Conyers..Jr. Cong. Ronald V. Dellume Roads": A Concerned Citizen Looks at the Criminal- Justice System. Cong. Mervyn M. Dymally Cong. Lane Evans Cong. Martin Frost I appreciate the time and effort that has gone into the prepara- Cong. Robert Garcia Col;g,,'Evllllam H. Gray Ill A. Hayes tion of the discussion materials on organizational sanctions. Senten- - Lehman a z.w: The my testimony Cong.~ Charles B. Fiance! cing is an enormously complex problem. focus of is Cong. Louise M. Slauuhter Cong. Harley 0. Sleepers. Jr. on the question, Founded in '72 in san Antonio, Texas; expanded statewide in '75 and nationally in '85 2 . Should Organizational Sanctions 0 Be Based on Past Sentencing Practices? The Sentencing Commission earlier expressed concern about the public perception of a double standard of justice, one for the affluent and influ4 ential and another for everyone else. This perception results from the disparity in penalties between organizational offenses and those for blue= collar offenses. Past sentencing practices are the cause of the belief in a double standard of justice. Use of those practices as the basis for organi- zational sanctions in any way could only perpetuate public skepticism about equality'of justice. Specific examples of unequal justice include the minimal sanctions imposed on organizational offenders; the failure to prosecute responsible decision- makers, and/or the lenient penalties imposed when they are prose- cuted; and the priority given to prosecution of economic offenses rather than to regulatory violations that affect the public health and safety. 0 Granted, the dollar value of economic crimes is enormous. But an important, - major function of government is~ e protection of its citizen; Such protec tion should include practices that threaten consumer and worker safety, life, and health. Only a thorough revision of present sentencing practices can restore public faith in the equality of justice. Many of the features in the discussion materials could go far toward achieving that end.' The potential for achieving a single standard of justice, however, is dependent upon which of the proposals in the discussion materials are adopted. Restitution. The emphasis placed on victim restitution/compensation wherever feasible is a commendable departure from present sentencing practices. .AS the report on federal sentencing of organizations between 1984 and 1987 indicates, remedies for the harm done by the offense have been infrequent. 3. Coordinating compensatory remedies through administrative or civil enforcement. The even greater emphasis given to coordinating remedies, however, raises serious questions. The "Commentary" in the draft guidelines does mention that the court should"consider whether the alternative compen- sation would be materially more burdensome or costly for victims to obtain than restitution under the'criminal system, or would be delayed inordinately beyond the time that criminal restitution would be received." Andthe Deputy Chief Counsel suggests that possibly collateral remedies could be ignored, perhaps with the right to petition for modification if such remedies are invoked. But nowhere else are such possibilities mentioned. On the contrary: the frequent mention both by Mr. Parker and in the draft guidelines,that civil remedies are more likely to be available, practi - cable, less costly, and less difficult to enforce, strongly suggest a prefer - ence for these remedies. Other comments to the effect that civil or adminis- trative enforcement actions far outnumber criminal prosecutions against organizations further suggest that this type of action is considered prefer - able to criminal prosecution. Administrative enforcement actions by regulatory agencies have often been minimal in some of the most serious cases involving product - and worker- safety and other health- and life - threatening situations. dr they have been long delayed, coming only after a number of non- governmental civil injury suits have been filed or even settled. Such administrative inaction - - not the*infrequency of violations - - may well be the reason why the report on sentencing practices showed a relatively small percentage of federal prosecutions and sentencings for environmental and health and safety regulations. Inadeguacy Of administrative actions. When administrative actions have been taken, too often they have been inadequate in terms of the harm caused. 6 . imposed on organizations and their responsible officers for ~ The sanctions policies that have caused a number of deaths, injuries, and serious illnesses O - offender are in no way comparable to the penalties imposed on the blue collar imposed on who commits only one such offense. An example is the fines Eli Lilly Research Laboratories and one of its former officials in the arthritis drug Oraf1ex case. continue to be A ossible remed As long as the regulatory agencies dilatory in their enforcement of regulatory violations, the "government's interest in achieving regulatory objectives" is unlikely to be achieved. One - of the powers given the Sentencing Commission, however, was to "make recommen dations to Congress concerning modification or enactment of statutes" that "the Commission finds to be necessary and advisable iQ carry out an effective sentencing policy." This is an area where the Sentencing Commission might well consider a recommendation to Congress for a modification of statutes to encourage more effective regulatory enforcement. O Civil lili ation uts the burden of enforcement on citizens instead of than on government-- but nowhere is government enforcement more appropriate in life - or health- threatening situations. Moreover, civil injury suits are likely to result in inadequate