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For 13 months, the U.S. Sentencing Commission sat silent, without members, the victim of a partisan standoff between congressional Republicans and the Clinton administration. Crime legislation that required changes to the sentencing guidelines piled up, circuit splits multiplied and defendants convicted of the same crime in different jurisdictions grew more likely to get different sentences — a problem the commission was created to prevent. But in the eight months since the agency was reconstituted with a compromise slate of seven commissioners, it has quickly and quietly promulgated guidelines for half a dozen federal acts while rectifying splits in guideline interpretation among federal circuits. Judge Diana E. Murphy, of the 8th U.S. Circuit Court of Appeals, the first woman to chair the commission, has made it her goal to catch up quickly. The commissioners have completed recommendations to Congress on crimes involving child sexual abuse, methamphetamine trafficking and credit card theft. Increasingly, the agency has focused on economic and electronic crimes, drawing up rules on cell phone cloning, identity theft, telemarketing fraud and Internet piracy. “We completed a whole year’s work in just one half- year,” Murphy says. Some observers say that the commission shouldn’t pat itself on the back just yet because the toughest tasks lie ahead, including mandatory sentencing and drug sentencing disparities. “The enormous changes that have been created by the combination of the guidelines with mandatory sentencing has created an unprecedented rise in the federal prison population,” says Marc Mauer, of the Sentencing Project, a group in Washington, D.C., that advocates guideline reform. Professor Douglas A. Berman, of Ohio State University College of Law, an editor of the Federal Sentencing Reporter, says that a broad review of the system is in order. “It’s dangerously easy to be constantly focusing on specific provisions,” he says. “They are in a position to give a truly comprehensive assessment of the first decade.” CIRCUIT CONFLICTS The U.S. Sentencing Commission was created in 1984 in an attempt to depoliticize sentencing laws. The guidelines, drawn up over the first four years of the agency’s existence, use numbers to balance two criteria in sentencing: the defendant’s criminal record and the seriousness of the offense. Since 1989, when the initial guidelines were promulgated, more than 500,000 defendants have been sentenced under them. In addition to Murphy, the commission includes four federal judges, a law professor and John R. Steer, former general counsel of the commission. Berman says that the new commission is well-suited to gain the confidence of Congress because it includes so many judges and Michael O’Neill, of George Mason University School of Law, a former general counsel to the Senate Judiciary Committee. Two of the most important pieces of legislation the commission has addressed in its first guideline cycle are the No Electronic Theft (NET) Act of 1997 and the Identity Theft and Assumption Deterrence Act of 1998. The guidelines for those laws will increase sentences for credit card theft and software piracy by raising the monetary loss attributable to the theft of a credit card’s data from $100 to $500, and by calculating the value of stolen software by its retail price. Also, individuals who use “breeding documents” (stolen identity items used to obtain other forms of identification) will be subject to a 25 percent increase in their sentences. The commission has also sought to discover and rectify splits in guideline interpretation among the federal circuits. “Our staff has identified 38 conflicts, and 18 that are a priority,” says Judge Murphy. She adds that resolving a circuit conflict is difficult because of “the very fact that experts like federal judges are disagreeing — by definition those are going to be harder than promulgating guidelines on some new offense.” One subject of long-standing conflicts that the commission addressed is the definition of “single act of aberrant behavior” for purposes of a downward departure from a recommended sentence. Some judges viewed the phrase as meaning a single act. Others said it could mean multiple acts that, when taken together, could be seen as one transaction. The commission straddled the fence. “The phrases ‘single criminal occurrence’ and ‘single criminal transaction’ will be somewhat broader than ‘single act,’” the commission said, adding that using “aberrant behavior” as a justification for a downward departure should be limited to unplanned crimes that take place over a short period of time and are committed by defendants with little or no criminal history. The commission was harsher in curing a conflict over whether convicts who are to be resentenced can have any alleged rehabilitation while in prison considered as a ground for a lesser penalty. The panel recommended that judges be prohibited from considering “post-sentencing rehabilitative efforts” when sentencing. The commission, says Murphy, is also creating internal guidelines meant to set priorities among circuit conflicts. BROADER EVALUATION URGED But Samuel J. Buffone, a partner in the Washington, D.C., office of Boston’s Ropes & Gray and the founder of the Practitioners’ Advisory Group to the commission, says that it’s time for the commission to re-evaluate its entire mission. “We have lived with guidelines long enough now that the commission should be doing studies to challenge all of the assumptions and see if the guidelines have worked the way they should,” he says. Congress, he says, by ignoring previous commission recommendations on contentious issues such as money laundering and the disparity in crack vs. powder cocaine sentences, has stymied the agency’s mission. In May, Commissioner John Steer testified before Congress that the commission will turn its attention to drug sentencing guidelines after it clears its backlog. For now, however, Murphy says, “the powder-and-crack disparity is in Congress’ lap.” One proposal in Congress would raise powder cocaine sentencing levels to those for crack. That, says the Sentencing Project’s Mauer, would run counter to prior commission recommendations to lower crack sentencing levels. Commission statistics show that 40 percent of all federal crimes involve drugs. Murphy says that the committee will soon decide whether to do a formal study of the issue of mandatory minimums, another contentious issue. Steer says that the “safety valve” provision of the Violent Crime Control and Law Enforcement Act of 1994, which allows judges to give lesser sentences to less culpable defendants, is working as Congress intended, resulting in lesser sentences for defendants with minimal, nonviolent criminal backgrounds. Mauer feels that the “safety valve” should be expanded to allow low-level offenders with slightly worse criminal histories to benefit from lesser sentences. “We’re not talking serial rapists,” he says, explaining that expansion of the exception’s pool would not include violent felons. “After all, nothing happens unless the judge thinks it’s appropriate.”

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