 You're watching FJTN, the Federal Judicial Television Network. Sentencing day is the most important day in a defendant's life. The revised statement of reasons better reflects what happens on that day. And it will follow the defendant throughout his criminal justice life. So we want to make sure we get it right. The revised statement of reasons is important because it will provide us with a more complete and accurate picture of the decisions and findings that occur during the sentencing hearing. I think it's going to make our job easier. I promise you that it will. I think with use and use that doesn't take a whole long period to get used to, I think we're going to have a form that makes it much easier to do what we are required to do. Welcome to the Protect Act, statement of reasons. And now your host, Bob Fagan. Welcome to our program. On April 10, 2003, Congress passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today, or Protect Act. It focused primarily on providing more resources for the investigation and prosecution of child kidnapping and sexual abuse crimes. However, the act made several significant changes affecting the U.S. sentencing guidelines. These include new rules relating to the granting of downward departures, new requirements for what must be included in the statement of reasons, and new deadlines regarding when courts must report their reasons following entry of judgments. Proponents of the legislation argued judges were granting a disproportionate number of downward departures in sentencing. It's true that the number of downward departures had increased in recent years. However, it's also true the reasons for such increases are less clear. For example, downward departures at the suggestion of federal prosecutors, particularly in border districts, seemed to have increased. The debate about these trends and their causes suffered because documentation and data concerning departures has not been as reliable or as extensive as it might have been. To respond to this problem, and in order to better inform efforts to modify the Protect Act, or the guidelines generally, the Criminal Law Committee of the U.S. Judicial Conference has revised the form for the statement of reasons. It's not our purpose today to revisit the merits of the act or its history. This program focuses on a new form, the revised statement of reasons, its purposes, how to work with it, and why, and by using it, the Sentencing Commission will be better able to document sentencing decisions. By the end of this broadcast, we hope participants will be made more aware of the major revisions made to the statement of reasons, and by whom and how the information on the statement of reasons is utilized. The critical role played by those in the court responsible for completing the statement of reasons. And where to go for additional information. We've divided this broadcast into three parts. First, in a prerecorded interview, the Honorable Donetta Ambrose talks with the Centers Paul VanVis about the importance of the new law, and especially its effect on the statement of reasons, and the need for more accurate and timely reporting. Judge Ambrose is the Chief Judge for the Western District of Pennsylvania, and Chair of the Subcommittee on Programs and Administration of the Judicial Converters' Criminal Law Committee. Next, in a panel session, we'll provide an overview of the statement of reasons by reviewing the major revisions and how to accurately provide the information required. Then, after a short break, we'll focus on implementation issues at the court and the critical role played by those responsible for completing the revised statement of reasons. We'll talk with a law clerk and courtroom deputy about initial challenges, the importance of communication, and where to find additional information. Let me remind you that a copy of the revised statement of reasons has been included in the downloadable materials for this broadcast. Now let's turn to our interview with Judge Ambrose. Let's start with the most obvious question. How has the statement of reasons been revised? Well, the first revision that everyone is going to notice is the length of the statement of reasons. The statement of reasons has been revised to expand to three pages. Substantively, the revisions to the statement of reasons are twofold. First, the statement of reasons has been revised to facilitate better documentation of findings made by the court at a sentencing hearing with regard to both guideline-related issues, which might refer to specific offender characteristics, and non-guideline-related issues, which might refer to allegations in the pre-sentence report that a defendant has a history of past domestic violence or perhaps past sexual misconduct. When findings are made at the sentencing hearing that differ from findings set forth in the pre-sentence report, the court is under an obligation to document those findings so that they can be transmitted to the Bureau of Prisons. One of the things that the Criminal Law Committee discovered was that the Bureau of Prisons uses almost exclusively the information and findings set forth in the pre-sentence report to make many decisions, all of which dramatically affect the conditions of confinement of a defendant. If findings are made at the sentencing hearing, which differ from findings in the pre-sentence report, they need to be documented and sent to the Bureau of Prisons so that they can base their designation and classification decisions based on complete and accurate information. Secondly, the statement of reasons has been revised to facilitate better documentation of departure decisions made by the court. If the court makes a departure decision based, for example, on a plea agreement, then there's a place to note that. If the departure decision is made based on a motion of the parties, that can be checked off, and that information will be correctly noted on the statement of reasons. Most importantly, if there is a departure decision made by a defendant and the government acquiesces in it or states at the sentencing hearing that it does not object to the departure, that too can be documented on the statement of reasons. Finally, the statement of reasons contains additional language, the new statement of reasons, which will emphasize the statutory requirement of judges to provide specific reasons for every departure decision that is made by the court at the sentencing hearing. Will that make it easier, do you think, or more difficult for judges to use? I think it will make it much easier for judges to use, and the reason it will make it easier for judges to use is as the sentencing hearing progresses, they can use the statement of reasons form as a checklist and a reminder of what has to be done. If there are additional pre-sentence report and guideline changes, they'll be noted to do that, and they can do that right on the form at the time of the hearing. Any findings or comments which differ from the findings and comments set forth in the pre-sentence report can be marked on the new form. Any additional comments and findings about sentences that exceed 24 months can be written on the form. All those things will be a checklist for a judge to take care of at the time of the hearing so that nothing is forgotten and that complete and accurate information can be transmitted. Is there, are there things that the preparers of the statement of reasons can do to ensure it's accuracy? Absolutely, there are many different ways that we can use the new statement of reasons. I think that there will be many judges who along with courtroom deputies and probation officers will use it in court as a checklist during the hearing itself and check things off as the hearing progresses and as the decisions are made. I know that there are also many judges who might want to have the statement of reasons filled out beforehand, and that can be done as a draft form. These are judges particularly who have carefully reviewed the pre-sentence report, who have reviewed the submissions of the parties on any issues in dispute and who have had discussions with the probation officers. This way the draft form can be taken into court by the judge, the probation officer, or the courtroom deputy and used as a checklist and any changes made during the hearing can be noted on that draft form for the final form which the judge will sign after complete review. Can you talk a little bit about the thinking that went into the revision and the statement of reasons? This all started back in May of 2002. At that time the criminal law committee became aware of the use by the Bureau of Prisons of the information in the pre-sentence report in making their classification and designation decisions. We determined that decisions such as where an individual is incarcerated, who can visit him, what programs he is eligible for are often made solely based on information within the pre-sentence report. When a judge makes a finding that is different from the findings in the pre-sentence report, that wasn't always documented. For instance, the defendant might dispute a history of past sexual misconduct. The judge and the defense attorney might say, well, it doesn't affect the guidelines, so we really don't have to worry about it, when in fact that wasn't really true. It didn't affect the guidelines, but it was something to worry about because it did dramatically affect the conditions of confinement of someone who was about to be incarcerated. We wanted to make sure that if a judge made a decision that differed, or if he made a decision that there was insufficient information to support some allegation that was in the pre-sentence report, that was noted so that the Bureau of Prisons could make accurate decisions about an individual who was to be incarcerated in the federal system. Part of that process was the idea that we would get a booklet for judges, and the booklet would set forth not only instructions on how to correctly fill out the new statement of reasons, but also list those factors that the Bureau of Prisons considered in making their decisions, so judges could be aware of what was happening to people that they sentenced, and how important it was perhaps that they make specific findings when those findings were challenged. While all this was going on, the Protect Act came along, and that was a little under a year ago. And in the Protect Act, there were statutory requirements that each judge provide a statement of reasons for any downward departures that he or she was making at the time of the sentencing hearing. While all this was going on, the General Accounting Office was also conducting a study for the United States Sentencing Commission on Departure Decisions. The GAO report came out after the study was completed. I think most of us got the report, the blue booklet, and what we determined on the Criminal Law Committee was that judges were really not departing excessively in many cases, but the problem was, judges were not completing the statement of reasons. Sometimes they were not providing accurate information about what was actually occurring during the hearing. So we took the GAO report, the concerns about the Bureau of Prison getting accurate information, and the statutory requirements of the Protect Act, and formulated a new judgment and criminal case and statement of reasons that would address all of those issues. That was presented to the Judicial Conference. In September of 2003, the Judicial Conference approved the new forms for distribution to the courts, and also designated those forms as the vehicle by which judges would comply with the statutory requirements of the Protect Act. In December of 2003, the United States Sentencing Commission presented a few recommendations for some stylistic and technical changes to the statement of reasons to the Executive Committee of the Judicial Conference of the United States. These were approved and have been incorporated into the forms that we will now be using for judgments in criminal cases and statement of reasons. Well, this is very interesting because, as you know, most of the discussion about this has centered around the Protect Act and the requirements of the Protect Act. There's been a reaction within the Judiciary. But what you're saying is that, A, the process began much earlier. B, it began for much more substantive reasons and that it is as useful to the Judiciary and its clients and its purposes as it is to the purposes of the legislation. Absolutely. It is essential that we provide complete and accurate information on our statement of reasons which we'll now be going to the United States Sentencing Commission and ultimately to Congress. One of the things that we found out from the GAO report was the United States Sentencing Commission uses the statement of reasons exclusively to set forth the statistics on sentencing that came out in the report. And the United States Sentencing Commission really had only two categories of departures. The first category was category based on Substantial Assistance Department departures. The second category was called others. Well, we all know that there are many things which come under others. We have departures due to Fast Track or other early disposition programs. We have departures in immigration and deportation cases. And we also have departures in which the government is complicit in which the government does not object or acquiesces in the departure even though it's made upon motion of the defendant to accurately reflect what we are doing to make sure that the information that is being provided, not only to the commission, but to Congress and to the people of this country is full, complete and accurate. We have new forms which will assist us in that task. Well, is there, before we wrap up, is there anything that you'd like to add for your colleagues from your perspective as a sitting judge, as the chief judge of the Western District of Pennsylvania and as the chair of the subcommittee about this issue? I would only like to say that I know when everyone first sees this, they're going to be a little overwhelmed because it is three pages long, the statement of reasons. And there are lots of boxes and it seems a little daunting. But I do tell you that I think it's going to make our job easier. I promise you that it will. I think with use and use that doesn't take a whole long period to get used to, I think we're going to have a form that makes it much easier to do what we are required to do, to remind the judge of every decision he or she must make to make sure that everything is documented correctly and reviewed and providing full and complete accurate information is going to be a lot easier for all of us. Thank you, Judge. Our thanks to Judge Ambrose for her comments. Now I'd like to introduce the members of our panel. With me are Kim Watley, special assistant, office of probation and pretrial services at the administrative office of the US courts and Krista Rubin, senior education and sentencing practice specialist at the US sentencing commission. Let me welcome both of you. Thank you. For our viewers, if you have any questions relating to the statement of reasons, please fax them to us. That number will be appearing on the screen throughout the broadcast. Let's turn to the major revisions of the statement of reasons and how to complete it. I believe there are five major revisions that we're going to be focusing on today. So Kim, I think you have the first part. Well, the first category of major revisions to the statement of reasons appears on page one and it really relates to changes to the pre-sentence report. Essentially what we've tried to do is divide different categories of changes that might occur as a result of the court's finding that is different than the information that might be contained in the pre-sentence report. So for example, we followed the guideline manual chapters as a guide. So there are about three or four major check boxes, if you will, that the court might wanna consider. In chapter two of the guidelines, there could be changes to what's reported in the pre-sentence report because of changes to the base offense level or changes to the specific offense characteristics. Changes to the base offense level would be based, for example, on drug amounts. If the court were defined at the time of sentence that the drug amount is different from that that has been alleged or that a mandatory minimum is not applicable. Specific offense characteristics really refer to changes that might occur in connection with loss amount or that a defendant possessed a weapon. So the pre-sentence report might include preliminary findings and the court might make substantive findings different than that. And those findings were recorded in this first section of the statement of reasons. The second change has to do with chapter three adjustments. Those refer to changes that might be relevant to victim related findings, adjustments, obstruction of justice, for example. The pre-sentence report might reflect that the defendant was a leader or organizer and the court may make a finding that that wasn't the case or that the defendant fully accepted responsibility. Of course, the most recent change in the law requires now that a third point for acceptance could be applied in a case but only at the motion of a prosecutor. So you wanna make sure that if the judge makes a finding at sentence that's different than what's in a pre-sentence report that's where you will record those kinds of findings. The third category comes out of chapter four of the Sentencing Guideline Manual and those are determinations made by the court about the defendant's prior criminal record or prior criminal history. The court may discover, for example, that the criminal history score was just not added up properly resulting in a different criminal history category than what may be set forth in the pre-sentence report. Finally, the court could make findings about the pre-sentence report that are not guideline related or guideline specific. These could be things, for example, where the probation officer alleges in the pre-sentence report that a prior criminal arrest resulted in an escape or that the defendant has a history of sexual misconduct. It's these types of findings or comments that the court may make at time of sentence that's very relevant to the Federal Bureau of Prisons and for their classification and designation decisions. So if the court were to make such a claim, we would wanna make sure that we include it in this new form. And again, as I think Judge Ambrose said, it's that whole idea of greater specificity and also taking into account what might be very different from the pre-sentence report about what happens at a time of sentencing. Right. Yeah. Krista, part two. The next revision we're going to address is the revision dealing with the guideline range before departures. It's found towards the bottom middle part of page one of the new statement of reasons form. I can't emphasize enough how important it is to accurately fill out the first part of the form that Kim just talked about in order to come up with this guideline range. This guideline range determined by the court before departures may be different from what's in the pre-sentence report just because of these findings that Kim was talking about that the court might make on the day of sentencing. So any changes that are in the top part of the form need to be reflected in this second part, the guideline range before departures. It's therefore also important to identify changes in chapters two, three or four of the guidelines manual as just that and not as departures. In this category here, all we would like to reflect is the guideline range before the court makes any departure decisions whatsoever. And this will clearly help the sentencing commission identify when a departure has taken place because of course a departure is a sentence above or below the guideline range. So this would be a, you know, a bright line rule for us to look and see that the guideline range as determined by the court is different than the sentence imposed because of a departure. So the accuracy and completeness of filling out the top part of this form in order to get to the guideline range before departures is really important. And I think we see as we continue to discuss this that this form flows very logically. So it is, it's very important, the information you put in that first part and as it reflects the second. Kim, third part. The third part of the form you can find on page two of the revised statement of reason and it's about in the middle. We're talking about types of departure. Now this information is all relatively new. The first section of course you would indicate whether or not the court departed upward or downward as a result of decisions made at the time of sentence. Then there are two new sections that haven't appeared in previous versions of the statement of reasons. The first section talks about a departure pursuant to a plea agreement. And then the second section talks about pursuant to a motion not addressed in a plea agreement. Let me walk you through both categories. Pursuant to a plea agreement departures are the most common substantial assistance. Included within the plea agreement may be an understanding that if the defendant cooperates that the government will move for a substantial assistance downward departure. So if that's the case, the court would simply check that box. The second type of pursuant to a plea agreement departure could be for fast track program or early disposition programs. And those programs are along the Southwest border that pursuant to a plea, certain departures are granted to move cases along. The third category is based on a binding plea agreement. Of course at the time of plea, whatever's in that plea agreement is binding upon the court and that could include departures. The fourth category is based on a plea agreement for departure which the court finds justified. That would mean that within the plea agreement, the written plea agreement, there's some language that's making reference to a departure for which the government has agreed is relevant in the case. The fifth category refers to a plea agreement that states that the government will not oppose a departure. This would mean that the defense would come in at the time of sentence, make a claim for some type of departure consideration and the government has already indicated in its written plea agreement that they would not oppose that departure. Now, the second category is pursuant to a motion not addressed in the plea agreement. Logically, it's the same sort of scenario that you might have a oral motion for departure based on substantial assistance and it's not named in the plea agreement. Secondly, you can have a motion based on any reason that the government might offer as grounds for a departure and that could be both up and down. It could be pursuant to a defense motion that they come in at the time of sentence and identify grounds to which there may be legitimate grounds for departure and the government does not oppose such a departure. And then the final category would be a defense motion for a departure to which the government has opposed and the court makes some decision about what action to take. The final section under the types of departure is a departure that is pursuant not to a plea agreement and not a motion, which would be a court initiated departure. The court on their own comes up with a reason that would justify a departure up or down from the guidelines. So this whole section is all brand new. Yeah, and it takes into account really every eventuality that might occur at time of sentencing. And again, the whole idea of being specific. Correct. Yeah, Krista. Okay, following with the logical progression of the form, once the court identifies that a departure is to be made, the next section on page two at the bottom of the statement of reasons form deals with reasons for departure. And if you look on the bottom of page two, you're gonna see a bunch of different boxes that list a bunch of different potential reasons for a departure. The majority of these boxes list a guideline from chapter five, part K of the guidelines manual, where we find a lot of departure circumstances included in that section. Two of the boxes, however, aren't from chapter five, part K. The first box is for guideline 41.3, which would authorize a departure based on adequacy of criminal history category. The second box, which isn't from chapter five, part K, is the other category. And this encompasses circumstances, departure circumstances from chapter five, part H, which would deal with specific offender characteristics from any language that's found in chapter two of the guideline manual or throughout the manual, because departure circumstances are found throughout the manual. So that category then would encompass all of those particular reasons. One thing to take note of is that three of the boxes have a specific instruction to explain with more specificity the reasons behind the departure. And that is for 4A1.3, adequacy of criminal history. The guidelines manual requires specificity if that is the reason selected for departure. Guideline 5K2.0, which is aggravating or mitigating circumstances, that guideline also contains a requirement for specificity. And then the other category at the bottom also requires the court to explain a little further what the reasons are. And Kim's gonna talk about page three. That would be where all of this explanation would be done. And this would assist the commission with the analysis of the reasons for departure that we see occurring throughout the criminal justice system. And also, this will help judges comply with the new requirement of the Protect Act that reasons must be stated with specificity whenever a departure is granted in a particular case. So this section is particularly important to meet that specificity requirement and also to indicate to the commission and to give us a better picture of what the reasons are so that our reporting of the reasons would be more specific and more consistent. I was just gonna say because that data is used for a very important purpose, not only in the reports that you have to make but by the Bureau of Prisons and others as well. That's right, that's right. Part five. The final part of the revised statement of reasons is found on page three. And that's the specificity of findings. And as Krista told us, the checkboxes on page two lay out all of the potential grounds for departure, both up and down. Page three allows the court to write in with some degree of specificity, the reason or the rationale, not only for the departure but for what other aspects of the statement of reasons. For example, if the court has additional pre-sentence reporting guideline application changes that they need to explain or that a sentence is imposed for a very specific reason or that there are additional comments or findings of information that need to be transmitted to the Bureau of Prisons. And then finally the most important additional reasons for departing from the guideline range. Now while every one of the boxes on page two don't require a direct explanation, in good practice you're probably gonna include a very specific explanation for each one of the boxes as to the reason to depart from the sentencing guidelines. That's a lot of information needless to say given in a short period of time. As I understand that the administrative office has also prepared a booklet on taking folks through the process just as you two have discussed of completing the statement of reasons. Where can folks find that booklet? Well, if they go to our JNET homepage and look for the Director's Memo entitled Revised Forms for Judgment in a Criminal Case, in that memo they can click on a link that'll take them to the booklet on how to complete the statement of reason. And it walks them through step by step each portion of the statement of reasons that we're talking about today. Great. We again wanna encourage our viewers if you do have a question that you'd like to fax to us, please do so. And later on in the broadcast, that number will appear. We're going to take a short break and when we return, we'll be joined by two additional panel members and we'll be focusing on implementation issues. So see you shortly. Welcome back. We're joined now by James S. Azadian, Law Clerk to the Honorable Ricardo M. Urbina, U.S. District Court for the District of Columbia and Catherine Crisbell, Courtroom Deputy to the Honorable Edmund Ludwig, U.S. District Court for the Eastern District of Pennsylvania. And again, let me welcome back Kim Watley and Krista Rubin. Well, someone listened, we got a fax. So let's turn to that because it really does involve an implementation issue. And I'll read it. If the court finds something in the pre-sentences unsubstantiated, should the report be revised or the finding noted on the statement of reasons? The revising the pre-sentence report is really a workload issue. And then you run the risk of having multiple versions of a pre-sentence report circulating throughout the system. And so as a general rule, I would highly encourage that instead of amending the pre-sentence report, that that finding be documented in the statement of reasons with some degree of specificity. Great, thank you. We're gonna be discussing implementing the revised statement of reasons and that's why we really wanted to get the perspective of a law clerk and a courtroom deputy. So let's jump right in, James. First of all, how do you deal with the statement of reasons and what do the revisions mean to you in terms of your responsibilities? Well, I think each judge deals with them differently. How we normally do it is we have the courtroom deputy sit in on the sentencing hearing along with the law clerk and after the judge pronounces the sentence, the courtroom deputy will go back to his desk and print out the statement of reasons after he has taken copious notes in the courtroom and then we'll submit it for the law clerk's review just as a second review, just to have another pair of eyes take a look at that. And then he will, after the law clerk has taken a look at that, they might work together to just make a couple more edits or revisions that might be necessary and then the judge would examine it closely to determine that it was in fact the sentence that he imposed and it's the reasons that he imposed. I agree with Judge Ambrose. I think she defined the task before us very well that we need better documentation of sentencing decisions. I agree with her that the task also now with the revised sentencing or revised form appears daunting. There are areas in the revised statement of reasons that may give rise to varying results. In particular, those varying results may end up frustrating the sentencing commission's data collection and reporting. For example, on page two of the revised statement of reasons, there is a section, a new section that asks the judge to explain departures pursuant to plea agreement. There are, that topic is subject to interpretation and depending on the circuit you sit in as a district judge, the laws or the rule of law governing what is subject to or pursuant to a plea agreement will change and in one sense, the government in the plea agreement might say, well, we're not objecting to the departure. They may also say we are consenting to that departure or they may even go to the other end and say we will advocate for a departure for these reasons. And each judge will then have to make a determination as to whether that is inclusive or pursuant to a plea agreement and those results can vary. Okay, hold that thought because I think we're gonna, let's get into a good discussion and we'll address that. Catherine, what's it like in the Eastern District of Pennsylvania courtroom deputies? What do you see as, how do you interact with the statement of reasons? Well, in our district, the courtroom deputies present in the courtroom for the sentencing hearing as well as a probation officer. And it's usually the probation officer who has prepared the pre-sentence report. In front of the probation officer is a blank statement of reasons packet. And as the judge is issuing his or her findings, the probation officer is actually creating a draft copy for the courtroom deputy to use in preparation of the judgment and commitment order. And then the main focus of the courtroom deputy is to file an accurate judgment and commitment order. And then to file it correctly, the statement of reasons pages are noted not for public disclosure. So in our district, we file them separately under seal. And then our main focus turns to distributing the copies of the judgment to all the interested parties and agencies and the defense counsel. So there's a lot of interaction because you also have probation involved. Yes, and we work very well with probation and I think communication and that keeps, that helps the process move faster. Sure. Let's go back to you, James. And then I wanna turn both to Kim and Krista. Define again some of the challenges that do you see. Well, another challenge that just comes to mind, speaking broadly now, is the statement of reasons has kind of always been a question mark. We don't exactly know the extent to which it is part of the record. When I say we, I mean me as an uninformed law clerk. Don't know to what extent it's used on appeal. If it is at all used on appeal, maybe some circuits will not look at it because it in fact is not part of the public record as it's stated on the top of the form. Then there's always the opportunity for a defendant to challenge his sentence through a civil action or through a habeas action, section 2255 action for example. And whether that statement of reasons would be made available to the defendant in challenging the sentence. The reason why I find this to be an open question and an important question for that matter is because the statement of reasons may, because just of the sheer numerosity now of the pages, the increase of pages from one to three pages, there's more of an opportunity for oversight or error. And that might present opportunities to otherwise challenge a sentence that before could not necessarily have been challenged. Okay, Kim, a response? Well, I think he raises good questions. And I think that one of the things that the PROTECT Act did is put the responsibility for the statement of reasons and its compliance and forwarding to the Sentencing Commission squarely with the Chief Judge. And so as a result, the Chief Judge is going to have to come up with procedures and processes and conditions to which that will address not only how you ensure the integrity of the statement of reason, not for public disclosure, but also the distribution issue that was raised. You know, there's really two processes going on. At the time of sentence, the clerk of court has a responsibility to disseminate the judgment along with the statement of reasons, which is attached to the judgment for an initial distribution. It goes to the Marshall Service, the U.S. Attorney, probation, and there's a litany of pokes to get the judgment and the attached statement of reason. On the second go round, there's a distribution to the Sentencing Commission. Now, that's a little different distribution of which the statement of reason is one of four other documents or five other documents that go to the Sentencing Commission, the Pre-Sentence Report, the plea, the indictment and all of these other records. And those are forwarded to the Sentencing Commission. So you have a lot of distribution of these forms going along right now. And so as a result, I would highly encourage that the courts get together from a local perspective and figure out how you're gonna deal with distribution and retaining the confidentiality of the statement of reason outside of the public file. But every court's gonna do it differently. Yeah, and new forms, like any new innovation, really may require some different processes in terms of that. Any thoughts, Krista? Well, and I think it's just gonna be really important for everyone involved with the statement of reasons, the law clerks, the courtroom deputies, the judges, to get together and communicate with each other and talk about potential issues that may raise some questions about consistency or accuracy, as James was saying, with the plea agreements. You wanna make sure that what the information recorded, of course, is accurate and complete, but you wanna make sure that within your own court you're doing exactly the same thing from law clerk to law clerk, from courtroom deputy to courtroom deputy. So I think communication's gonna be really important in this process. Katherine, from your perspective as a courtroom deputy, what do you see are some of the challenges? Well, looking at the form, I don't see it being too problematic for courtroom deputies. It's a matter of going line by line through the form and paying close attention during the sentencing hearing and filling it out to the best of your ability. There's also all the 5K sections are listed, so it's a little easier in that you don't have to know what the section was for the type of departure. And there's also room for text, which is a nice feature. We've received additional facts as one came in asking, where does the offense level and criminal history category after departure go on the form? Well, just looking at the statement of reasons form here, there is no space for after departures for the offense level or the criminal history category. Page one has the guideline range as determined by the court before departures, and then page two talks about if a departure was granted and the reasons for a departure. Now, the extent of that departure would be shown on the final pronouncement of sentence, so we'll be able to compare the guideline range as determined before departures by the court to the sentence that was imposed. And so there's no requirement on this new statement of reasons form for an offense level or criminal history category after departures. I think the other thing the caller might be, or the faxer might be getting at is that some departures are structured and some are not. So for example, a court may make a determination of adjusting the base offense level, which you would record on page one, but that's not a departure. But in terms of structuring the departure, the court can do, it has a lot of flexibility. There's no requirement that it be two levels off the offense or two levels off this that you would see in that ultimate guideline range that we're asking for on the first page. Another fax, is it necessary that the statement of reasons, for the statement of reasons to identify the basis for substantial assistance departure? No. There's no requirement, I understand, I think what the fax might be getting at is whether or not the degree of departure that the court determines as a result of substantial assistance. But here again, the court has the freedom to go from whatever mandatory minimum is all the way down to probation based on the substantial assistance motion and there's no requirement in the law that they explain how they got to that determination, only that they departed. Okay, and let me hit you with one more there. Just the faxes are just rolling in. The probation office has been completing sentencing commission form one and forwarding that along with the rest of the sentencing materials prior to the Protect Act. I see that the new standard SOR form is an AO form that looks like it's to be appended to the J and C. Does that mean that it's the U.S. Attorney's responsibility to fill out the new form while we continue on our one-page sentencing commission form or is this incorrect? Well, first of all, I'm not sure how this particular district has decided to submit the documentation. Really what the sentencing commission is concerned about is receiving all of the proper documents that are required by the Protect Act. So regardless of whether the U.S. Attorney is filling out the statement of reasons or whether the probation office or the law clerk or the courtroom deputy, I think there needs to be some communication about who's responsible for forwarding that to us. Now as far as the form one, the U.S. Sentencing Commission form one, that is not a mandatory form by any means. I believe it's a sort of a transmittal notice is what that form deals with. So the only things that the sentencing commission required are things that Kim alluded to, which are the pre-sentence report, the plea, the indictment, the statement of reasons, the judgment and commitment order, and also in the statute, the statute addresses a report of sentencing. And basically what the sentencing commission is expecting from that is this is what our report includes, the JNC, the statement of reasons, the plea, the indictment, and the pre-sentence report. So I think that the district can continue to send in that form that they've been using along with all of the other appropriate documents that we require. But as far as who's filling out the form, I'm not so sure that I can comment on that. And I think we noted before that that may very well differ from district to district and may perhaps change as it goes on. James, you're about to say something. Well I think that that last question raises a very interesting issue, one that I think maybe can be explored a little further. I don't necessarily know, and I'm gonna use this term loosely, how a court can delegate the function of laying out its statement of reasons or its reasons in this form. But to the extent that it could, assuming that it could, it might be more than convenient, but also assist the record of the case if that were able to take place because having either the United States Attorney or the Defense Council or both be able to work together to propose a statement of reasons that the judge can then look over, which is essentially what the court and deputy and the law clerk were in some situations, the probation officer is now doing. That, by allowing that to happen and that fostering that relationship, that might alleviate some of the concerns that we had previously discussed earlier. Kim, any reactions to that? Yeah, I'm not really sure that the court would delegate to another government agency to perform its function. And I think that, I think that even one court has attempted to do something like that and I think it's being examined. I think that at the end of the day is the judge's sentence and at the end of the day, I would prefer to see a court employee regardless of who that is completing that form, submitting it to the court because it reflects the sentence of the court. So there's some things in my mind that you could easily delegate to other parties, but I get a little nervous when you're talking about one of the advocates, one of the parties having some role in all of this, but every court is gonna do what it likes to do. That's right. Katherine, any other thoughts, any other challenges that you see on the part of courtroom deputies? No, the form is a little longer than usual. Another change is the last page, the personal information of the defendant is listed and that will now be under seal. And I understand eventually the judgment itself will be electronically filed. Any other thoughts? If not, I'd like to go around the table and have you each give us just some final thoughts on the subject area. Krista, let's start with you. Well, I think overall this new revised form is a positive change that we're all gonna benefit from. I know the sentencing commission is going to benefit from this more complete information about what's going on at the sentencing hearings and that will better inform us as we continue with our research and for the commissioners as they're looking at policy development. We rely heavily on the statement of reasons form to give the information that we need to Congress in our annual report and in other areas as well. So overall, I think the revisions are gonna be very positive. James, I agree. I think the purpose here is to provide accurate information. The more accurate we can be, the better it will be for the data collection and the data reporting that the sentencing commission can do. There are judges who keep their own statistics and have become frustrated that maybe the sentencing commission has not accurately taken the information that they're providing them and looking at it in a different fashion. This all boils down to just better government, better sentencing procedures and I think that all at the end of the day, that's all we're interested in is just good government. Right. Katherine. Well, from the courtroom deputy perspective, it may even make our job a little easier and that everything is laid out. We just go through the form, put a block check in the different blocks. I don't see it as adding too much time to the preparation of the judgment and commitment order either. Kim. Well, I would say that the statement of reasons has been around since 1987 in a variety of different forms and I think like any form, people get really excited when we're talking about a change and I think that over time, we'll make adjustments as necessary, we'll perfect it as we go along. This is not the end all to what a government form is gonna look like in the judiciary, but I think that if we could get back just to the human aspect of this for a second, we probably process 80,000 criminal defendants each year in the criminal justice system and for them, the most important day is the sentencing day and the statement of reasons is a document that reflects what happened to them on that day and so what we wanna make sure is that we're reporting information in the statement of reasons that accurately reflects what happened to them that day because at the end of the day, we wanna get it right. Absolutely. Did I use the term final word? Well, guess what? We have one more fact and we actually have time to do it so let me give you that one. In our district, guidelines are calculated on the plea agreement by direction of the court. How will this affect the use of this form? Well, as the guidelines are calculated in the plea agreement, I can see it affecting it a couple of different ways. You may have a situation where the guidelines are calculated one way in the plea agreement, they're calculated another way in the pre-sentence report and then the court's gonna come in and make some findings about what actually should apply in that guidelines case. So I think that if the judge decides to go with what was calculated in the plea agreement versus what was in the pre-sentence report, all those findings are gonna be recorded on that first part of page one of the new statement of reasons. So it's going to impact it in that there may be a comparison going on that the judge is making between the pre-sentence report and the plea and other arguments that are presented to the judge at the time of sentencing, but that should be reflected in that first part of the form. Thank you. It also makes the form more critical because if you look at it from the perspective of the sentencing commission receiving all of these documents, they're getting the plea, they're getting the pre-sentence report. What they wanna be able to do is go to one document to determine what did the court do? Not what the plea did, not what the probation officer said, but what did the court do? And the statement of reasons is the mechanism for which the commission is gonna look to determine what did the court do? Again, allowing for specificity, allowing for what happens at the sentencing and so forth. If you don't want grades for that. Great. Well, I imagine we're going to get a whole number of additional facts and we'll address those. We'll make sure that we talk to everybody and answer everyone's questions that come in even after the broadcast is over. Today we've examined the major revisions to the statement of reasons and focused on how to accurately complete that form. We've also taken a look at whom and how the form is used, as well as some of the key issues and challenges faced by those with the important responsibility for implementing the statement of reasons. We hope we've also pointed out to you where you might get additional information. Like any innovation or revision to a process, communicating to assure accurate information is key. Learning effective practices from each other and sharing information is also critical. We hope you found this broadcast to be informative and directly related to what you do on the job. Again, I'd like to thank our panelists, Kim Wattley, Krista Rubin, James Azadian and Catherine Crispell. I leave you with a quote from Justice Souter, which I think says it all. Whatever court we're in, whatever we are doing, at the end of our task, some human being is going to be affected. Some human life is going to be changed in some way by what we do. Thank you so much for joining us today and we'll see you on our next FJTN broadcast.