After considerable public input, the U.S. Sentencing Commission recently voted to send Congress amendments to the federal sentencing guidelines that, among other changes, would increase the availability of alternatives to prison and would alter the sentencing of corporate offenders.
Although the sentencing guidelines are no longer mandatory, judges continue to look to them on a regular basis in determining appropriate punishment.
Under the alternatives-to-prison proposal, courts could depart from the guidelines when an offender’s criminal activity was related to drug or alcohol abuse or significant mental illness and when sentencing options, such as home or community confinement or intermittent confinement, would serve a specific treatment purpose. The commission also recommends that courts consider the effectiveness of residential treatment programs as part of their decision to impose community confinement.
By adjusting offense levels, the proposed amendments would make more offenders eligible for alternative sentencing options, such as split sentences (half in prison, half in alternative), home or community confinement.
“The commission has heard from virtually every sector of the criminal justice community that there is a great need for alternatives to incarceration,” said Chairman William Sessions III in an April 19 statement. “Providing flexibility in sentencing for certain low-level, non-violent offenders helps lower recidivism, is cost effective, and protects the public.” Sessions called the changes a “very modest step” in the right direction.
The commission also has proposed changes on the sentencing of organizations. Most importantly for corporations, a larger number of offending organizations would be eligible for a credit for having an effective ethics and compliance program.
In a firm memo discussing the proposed changes, Gibson, Dunn & Crutcher noted that a number of groups had urged the commission to eliminate the “absolute bar” to getting that credit if “high-level personnel” had participated in, condoned, or were willfully ignorant of the offense. The term “high-level personnel” is defined to include a director, an executive officer, and “an individual in charge of a major business or functional unit of the organization.”
Although no statistics are available, the law firm noted that the per se disqualification applies to several convicted corporations annually. David Debold, of counsel to Gibson Dunn, is co-chair of the Sentencing Commission’s Practitioners Advisory Group.
The commission eliminated the per se bar but attached certain conditions for the credit to apply, the most important of which is that “the individual or individuals with operational responsibility for the compliance and ethics program ... have direct reporting obligations to the governing authority or an appropriate subgroup thereof (for example, an audit committee of the board of directors).”
The change, according to Gibson Dunn, would expand the direct reporting required between the person with day-to-day responsibility for compliance—often the general counsel—and the members of the board.
In other changes, it would be appropriate to consider such factors as an offender’s age, physical, mental and emotion conditions, and military service—currently considered “not ordinarily relevant”—in determining whether to sentence outside the guidelines. However, the factors in the particular case would have to be relevant to an unusual degree and distinguish the case from the typical case.
“Through this amendment, the commission is providing the criminal justice system, and particularly judges, with the information they have long sought,” said Sessions. “The more information we can provide on the use of specific offender characteristics during the sentencing process, the more consistency and uniformity will result and the more justice will be served.”
Another amendment responds to the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 by broadening the guideline for offenses involving individual rights to include the new hate crime offense. The act makes it unlawful to willfully cause bodily injury to a person because of the person’s race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. The act also made it unlawful to attack a U.S. serviceman on account of his service, and the sentencing amendment would incorporate this new offense. The commission also expanded the definition of a hate crime in its penalty enhancement for hate crimes to include victims who were targeted because of their “gender identity.”
The amendments must be submitted to Congress by May 1 and will become effective Nov. 1 unless Congress rejects them.