United States Sentencing Commission Public Hearing on Proposed Amendments to the Sentencing Guidelines Friday, April 7, 1989, Ceremonial Courtroom,uniited States Courthouse Washington, D.C. 9 a.m. William W. Wilkins, Jr. Chairman, U.S. Sentencing Commission 9:05 a.m. Anne Seymour ~ National Victims Center, Fort Worth, 'TX 9:25 a.m. Edward S.G. Dennis, Jr. Assistant Attorney General, Criminal Division Department of Justice ( ~ 9:45 a.m. Joseph B. Brown United States Attorney, Nashville, TN (/10:05am. Sam Buffone Steve Salky American Bar Association :25 a.m. Jonathan Macey ~ Professor of Law, Cornell Law School £ -~ 10:45 a.m. Break 11 a.m. Tom Rendino President. Federal Probation Officers Association (/ 11:20a.m. Benson Weintraub National Association of Criminal Defense Lawyers 11:40 a.m. Derek J. Vanderschaaf ' Deputy Inspector General, Department of Defense Morris Silverstein Assistant l.G. for Criminal Investigation, Policy & Oversight noon Catherine England Cato Institute X-~2:30 p.m. Lunch B U.S. Sentencing Commission Public Hearing - April 7, 1989 Page Two 1:30 p.m. Honorable Warren K. Urbom United States District Court, Lincoln, NB Honorable Vincent L. Broderick United States District Court, New York, NY 2 p.m. Dan Freed Professor of Law, Yale Law School 2:20 p.m. James l.K. Knapp Acting Assistant Attorney General, Tax Division 2:40 p.m. Lucien Campbell Federal Public Defender, San Antonio, TX 3 p.m. Larry Ribstein Professor of Law, George Mason University 3:20 p.m. Philip Bartholomew Senior Economist, Federal Home Loan Bank Board : 3:40 p.m. Public Comment Il £3 "? - ii -1; am - 1* It vu ' ' . ! fe. - -1 3;;Ej;'- ';r. : 7 / $2 1 ( - 6<; =1* FEDERAL PROBATION .;:8 : *3 - " r = , EF, '/ €%OFFlcEns ASSOCIATION ;.21 National Officers 1989 I Presi den! Vice President Secretary/Editor Treasurer Tommaso Rendino Ralph Ardito Philip J. Bigger Carol D. Erichsen Burlington, VT Washington, DC Brooklyn, NY Grand Rapids. Ml PREPARED STATEMENT OF THE FEDERAL PROBATION OFFICERS ASSOCIATION (FPDA) FOR THE ' I UNITED STATES SENTENCING COMMISSION i 7 APRIL 1989 HEARING oN PROPOSED AMENDMENTS AND ADDITIONS TO THE SENTENCING GUIDELINES X. CEREMONIAL COURTROOM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DELIVERED BY: TOMMASO D. RENDINO PRESIDENT - FPOA Regional Officers Northeast Mod Atlantic Southeast Central States Great Lakes Western Donald T. lnamorato Jack S. Koonce III Larry J. Burris John E. Cooper James D. Sager Charles L. Stearns Newark. NJ Wilrninzton. NC Jacksonville, FL Galveston. TX Belleville. IL West Covina, CA / f FPOA Prepared Statement, 7 April I989 page 1 Nr. Chairman and Commissioners, I am Tommaso D. Rendino, President of the Federal Probation Off icers Association and currentlg serving as Senior United States Probation of f icer in the District of Vermont, stationed at Burlington, with an off ice also at the Palais de Justice, Montreal, in connection with mg duties as liaison off icer with local, provincial and' federal agencies in the Province of Uuebec,canada. The FPOA appreciates this opportunitgto offerjts observations on some of the proposed amendments arid -False as td:other.guide,line = matters. ' First of all, in re paragraphejo,i1Thefor Robgberg" page 30, the FPOA has received reporgts that se;ntences;for,banl< robbefg are too tow under the guidelines and no,;reparts to the contrarg.;Theref.ore.vee believe that a raising of the base' level from' lb to24mag belappropriate. We suggest that (see page 32 of the proposed amendments) the current armed robberg ranges be applied to a new unarmed rangeand that the armed robberg range which would result from an increase of 6 in the current base level be adopted. This would result in the following new ranges: l H Ill iV V VI - - - Unarmed 41 51 46 57 51 63 63- 78 77- 96 84- 105 - - Armed 78 97 87 108 97 - I2l 110- 137 130- 162 140- 175 Proposed option 2, page 33, seems reasonable to us. FPOA Prepared Statement, 7 April 1989 page 2 The dif f erence between bank robberies and other robberies, as reflected in longer prison terms, should remain. Bank robberies are more public acts and generallg place more people at risk. Concerning paragraph 96, 'Continuing Criminal Enterprise", page 55, we believe that guideline ranges which address statutes calling for mandatorg minimum penalties shpt;}d'havegfhe loi%z~@;end*"of the range reflect 7 .:.2 " - . ; -3% the minimum set bg Congress. g~iighai-je' pai; f'1aigutqellinewfange f all below a . ~ as' ; Z = ~ - 9; - £5 *7: .,3: eg ; slim ~ 5 '< ! ? if ! 1 ;i is ~ = Congressionallg mand~ted mandb@oi?g£'mi ,,mtififpenhltg' wouldihave no real = H hu "lg}~ W,j£ > {11.,3 value except, perhaps}Tto sugges~that?'i3ongfess?erredin settin'g..the minimum too high. Moving to paragrap~il 19,Elsstfes'Relatedfto'specific Forms of Fraud", page 69, we support a twoileizel incfeas'€Ein;cases where there is a risk of serious personal injurg. We alsobelieve that this should be a specific characteristic in all fraud cases and not be limited to just a particular tgpe of fraud. We feel that sentences should be higher for insider trading, procurement frauds and frauds against financial institutions as this tgpe of criminal behavior undermines public confidence to a greater degree than do other frauds, and theg have a more serious financial impact on the larger cemmuriitg. FPI3A Prepared Statement, 7 April 1989 page 3 ln order to appropriatelg account for larger frauds, upward departure is seen as the preferred procedure rather than adding new categories. This method alreadg seems to work well with drug of fenses and it also provides the Court with greater discretion. As to paragraph 243, "The Career Of fender Guideline", page 135, we view current career offender guideline ranges.as..verg high. Option l, page 136, reflects a reasonable approach. ltwould place thi}sevpaHi;;ular of fenders in a range of imprisonment higherithan the 'current'caeegor;jfv- l,*but not at an extraordinarilg high leiiel. We Categorg Vl as probablg having ~gjiminalrreifdrds quiteisimilarjfdpareer of f enders. A merging of Categgjjg Vi and proposed.categorg Vllwould appear - to be more realistic than'what*al'reai;lg eiiists and - should be'Triedtout. Concerning paragraph 247, "Sentencing Table7;page.lzi2, the 0 to 6 month range which is proposed is more reasonable than the current subdivisions. This inclusive range would eliminate the lesser ranges which now exist and which are not 1) required bg statute, or 2) necessarg to structure judicial discretion. Regarding paragraph 260, "Home Detention", page 147, the FPOA supports home detention, accompanied bg electronic monitoring where appropriate, not onlg as an alternative to incarceration as required bg Section 7305 of ! FPOA Prepared Statement, 7 April I989 page 4 - the Omnibus Anti Dmg Abuse Act of 1988 but also, in and of itself , as an additional gradation ln the range of sanctions available to the sentencing Court. There are plans currentlg afoot to vastlg increase "home detention", using electronic monitoring, on the "back end" of sentences. We feel that it is also desirable as an option on the "front eno" of sentences. The concern that home detentionis not punitive in thepublic ege is onlg one of perception. It is alreadg reportedthat inmates pref er the greater freedom which exists in half- yiag€.'hous'es;over thej~estrictisons ot remaining at home dailg on a monitored basis. While the Federal'Tprobation'serviceiis Lnoticurrentlg staffed to handle ang additional supervision dutigesvsuch as would necessarilg ariseewith home detention,the option remains desirable .tlt Supervision in home- defention cases would be intensive inorderito be effective. We estimate that, given current knowledge of home detention cases with electronic monitoring, an experienced probation of f icer could handle probablg no more than 20 to 25 cases, to the exclusion of other duties. lt must be emphasized that, whereas home detention can be a valuable addition to the panoplg of sanctions, it can onlg be accomplished via additional staf f and resources such as electronic equipment. Were it to be appropriatelg implemented some of the collateral benefits to be realized FPOA Prepared Statement, 7 April 1989 page 5 would be I) alleviation of prison overcrowding and 2) probable savings of public funds. Next, the FPOA wishes to urge the Commission to move as speedilg as possible to electronicfretrieval of the data which the Commission requires from the f ield. The necessitg of having field staf f manuallg pull together the required papers and send them via surface mail is a burden we would appreciate having leave us, soon. The technologg and the equipment is in place, for the most part. The FPOA asks that the Commission consider amending Guideline IBl.9 bg changing the period at the end of this one sentence guideline to El comma and adding the following language, "or ang Class A misdemeanor violation involving theft, in which the value of the propertg taken does not exceed $l00." Several districts which have militarg bases and other large federal installations located within their boundaries handle numerous Title IS U.S.C. Section 641 shoplifting cases which are Class A misdemeanors and which needlesslg tie up probation officers and needlesslg delag what are almost inevitablg sentences to peg a fine onlg. Penultimatelg, FPOA requests that the Commission review our Salarg/Benefit Comparabilitg Studg ("Studg") dated October 5, I988 and consider supporting FPOA'S goals as enumerated therein. We certainlg do FPOA Prepared Statement, 7 April I989 page 6 not, in the least, ascribe to the Commission responsibilitg for the problems which the Studg details. On the other hand, guideline sentencing plags a verg prominent part in a probation off icer's professional life and the Commission could be in a position to offer support whichicould be most beneficial to the field.