 You're watching FJTN, the Federal Judicial Television Network. And welcome again to Perspectives. In this third edition of the FJC's TV magazine program for federal probation and pretrial services offices, we'll report on an innovative procedure for expediting pre-sentence investigations developed in the Southern District of New York. We'll also tell you about new center research on possible case management tools based on the risk prediction index to help pretrial services officers with supervision duties. And we'll hear from the Sentencing Commission, as well as get a legal update from David Adair, AO Associate General Counsel. But this program will focus mainly on the National Sentencing Policy Institute that was held in March in Long Beach, California. The stories will give you a rare glimpse of how policy and practice can influence each other as a result of dialogue among Institute participants. The Judicial Conference's Criminal Law Committee was instrumental in planning the meeting, working in conjunction with the FJC, which conducted the Institute under the committee's auspices. The committee is charged with representing the judiciary on criminal law legislation, sentencing issues, and guidelines. Representatives of the Administrative Office, the Sentencing Commission, and the Federal Bureau of Prisons also joined in planning sessions over the past year. Like its predecessor Institute held in January 1997, the March Conference departed from earlier circuit-based institutes that concentrated on practice and guidelines interpretation. It offered instead a unique forum for discussion of national sentencing policy issues. More than 150 participants from every circuit, including key officials from the executive, legislative, and judicial branches, took advantage of this rare opportunity to consider the issues together. They included federal district and appellate court judges, U.S. attorneys, federal defenders, federal probation officers, and staff from the Administrative Office, the U.S. Sentencing Commission, and the Federal Bureau of Prisons. Chief, deputy, and line probation officers attended. In opening the meeting, Chief District Judge George Cazan, Chair of the Criminal Law Committee emphasized that in addition to the goal of providing the committee and the Sentencing Commission with input about sentencing policy, the Institute had another important objective. The other force is to increase and enhance dialogue between judges and other major components of the system. So as we go along in this week, you judges will have an opportunity to dialogue with probation officers, prison officials, U.S. attorneys, and so forth, public defenders, to better inform each other about the roles that we play in the sentencing process. With the implementation of the Sentencing Guidelines in 1987, probation officers have come to play an increasingly important role in the sentencing process. And closely with U.S. attorneys, federal defenders, private defense counsel, and district and magistrate judges, they find their work subject to wider scrutiny and greater accountability than ever before. For that reason, it's vital that officers have up-to-date information and a grasp of underlying sentencing issues and policy decisions. That's why we're televising for you some of the discussions and events that took place at the Sentencing Policy Institute. The role of Congress in setting sentencing policy and recent legislative developments, the latest views on judicial discretion and departures in light of the Supreme Court's Kuhn decision, unresolved circuit conflicts and guideline application, and current Bureau of Prisons Programs and Operations. In a first for a sentencing institute, three staff members of the House and Senate Judiciary Committees, which oversee judicial branch operations, provided insight into recent congressional actions involving sentencing issues. District Judge Richard Arquera set the context for the discussion. He recounted how, in the 1980s, Congress abandoned its historically limited role in sentencing, which had allowed judges total discretion to impose sentences up to a maximum established by law. Citing excessive disparity and inconsistency in criminal sentences, Congress reevaluated the entire federal sentencing system and in 1984 enacted the Sentencing Reform Act. However, Judge Arquera said, Congress's pursuit of enhanced effectiveness in sentencing did not end there. Beginning in 1984, Congress enacted an array of mandatory minimum penalties, specifically intended to attack drug offenses and violent crimes. In 1990, Congress formally directed the sentencing commission to study the effectiveness of mandatory minimum sentences. In 1991, the commission issued a report, finding that despite the expectation that mandatory minimums would be applied in all relevant cases, inconsistent application by prosecutors was creating substantial disparity in sentencing. In recent years, Congress appears to be more opting to more and more for a specific directive method of implementing sentencing policy. That is, directing the sentencing commission to implement specific changes in offense levels and guideline ranges. The use of these specific directives by Congress to tinker with the specific guidelines levels causes concern of the criminal law committee that by using specific directives, Congress is not necessarily taking into account how these specific changes, even though they may appear to be minor, may affect the overall coordination and implementation of the guidelines and the sentencing policy in general. Senate Judiciary Committee Minority General Counsel, Beryl Howell, explained that the effort to avoid adopting new mandatory minimums often results in congressional directives to the commission. I haven't sort of counted percentage times this has happened, but oftentimes when you see a final directive of some kind to the sentencing commission, I would say at least 50% of those times, it often starts off with a proposal for a new mandatory minimum. Michael Kennedy, Council on the Senate Judiciary Committee, reflected on the interplay between the branches in the enactment of sentencing legislation. Congress will pass a law, and the President will sign it, and then we'll see this interplay. The courts will go out and try to figure out, well, what did Congress mean? What did Congress intend to do? We'll see a number of court decisions, and then Congress will step back in and say, well, no, this isn't what we meant. Or right on, we really like what you're doing. I think that ideally, the sentencing guidelines will utilize all branches of the government to calibrate the sentences in a way that allows for individualized justice, but at the same time are consistent across the country. Kennedy noted two types of cases that contributed significantly to the growing number of criminal cases and defendants shown in 1997 statistics. The increases in the number of cases and defendants, I think, can be attributed to two chaotic cases that you all are very familiar with. Drug cases, which increased 12.9%, and INS or immigration cases, which increased a fairly amazing 20.8%. Brian Wolffolk, House Judiciary Committee Minority Council spoke of the impact that television has in the development of sentencing legislation. We're dealing in a time in which there are a lot of sound by politics. I mean, the three strikes you're out, I think it probably started with a sound bite, and then people figure out how we go about implementing it. Responding to a question from Judge Arquera, Wolffolk stressed that reason and logic can prevail over mandatory penalties. School boards have passed a lot of laws around the country that really don't make any sense when they kick people out for bringing a butter knife to school for their lunch box. When you think about the implications and impact, then people start slowing down by saying, we need some common sense in this. Howl added that the cost of imprisoning more inmates for longer periods of time is also causing second thoughts, especially in light of the Justice Department budget proposal this year. And that budget proposal contains almost a billion dollars in budget requests for three new federal prisons, as well as expansions of federal prisons. I think that there are members who are looking at the price tags for this and are getting more concerned about the cost of more mandatory minimums. So that when they're looking at broader societal impact, they're saying, do we want to spend another billion on more federal prisons? Or do we want to spend it on some other education program? And so I think that Congress is also quite able to make that broad policy assessment as well, and that there are many members who are making that assessment from both sides of the aisle. The growth of the federal prison population was a subject addressed by Kathleen Hawke Sawyer, director of the Federal Bureau of Prisons, in a presentation on current BOP operations and activities. In introducing her, Judge Stephen Wilson cited statistics that reveal the magnitude of the problem. As a nation, we have a prison population which is unprecedented. The New York Times of last Sunday had an article that reported that one out of every 150 Americans is now incarcerated. According to the article, 60% of the prisoners are incarcerated for drug-related crimes. The annual cost of housing a prisoner is set to be $20,000. Director Hawke Sawyer sketched out the current situation and the projections for future growth. Our current population, the Bureau of Prisons, is now 126,000 inmates, which is incredible. Our current projections, and these are very conservative projections in terms of what our numbers look like in the out years, but it suggests that our population is going to reach at least 150,000 by the year 2001 and at least 178,000 inmates by 2006. She said federal prisoners doubled in the last decade, and the numbers continue to break records. Last year, we experienced our largest growth year in the history of the Bureau of Prisons, which surprised the heck out of me, because I thought our biggest growth years were a few years ago. We grew by over 10,000 inmates. Hawke Sawyer attributed this to increased INS cases, methamphetamine prosecutions, and more FBI and DEA agents on the job. She noted that the dramatic increase began in the mid-'80s because of new sentencing legislation. Most of our growth since the mid-'80s is the result of the significantly long sentences with mandatory minimums in legislation enacted in 84, 86, 88, and 90, which created the determined sentencing, abolished parole, and reduced good time. All of that has meant that the increased investigations and prosecutions mean we get more inmates, and once we get them, we keep them for a long, long, long, long time. The explosion in numbers has put a strain on the federal prison system. We are now up to 94 institutions that are fully operational. That still leaves us 28% over capacity. Again, that is misleading. Our high security, our penitentiaries, are 46% over capacity right now. Our mediums are 49% over capacity. So we're desperately trying to get more facilities built at those security levels. On top of the 94 that are open, we have 18 more that are already funded by Congress and are going to be opening within now in the next about four years. In the face of the burgeoning population, Hawke Sawyer stressed that the Bureau is expanding its comprehensive sanction centers beyond the 40 currently in operation. Our comprehensive sanction centers have different layers or different tiers of security around them and how much freedom of movement or non-freedom of movement these inmates have. And we get wonderful cooperation from the United States probation staff because they hook up with these cases much earlier than normally, and they begin to work the case early on and it just gives you the sentencing judges more option in terms of what to do with supervised release violations. We'll be opening up more of those. In a break from panel discussions, Institute participants were given a tour of the nearby federal prison at Terminal Island. Their visit underscored the human impact of sentencing. Terminal Island is a medium security prison with about 1,000 inmates. In operation for 60 years, it's the oldest facility in the Western region. Prior to leaving for the ride to the prison, Warden Dick Clark set the stage for the afternoon tour. If you could stay together as a group, that would be helpful. However, if you see an inmate that you wish to talk to, let my staff know and they will accommodate your wish. Many officers feel that having this experience helps them do a better job. Assistant Deputy Chief Nancy Reems is one of them. I think we're more effective if we really have as good of an understanding as possible of what that experience has been for them. I'm here with the Bureau, so nice to meet you. Because in spite of the guidelines, it's still human beings that are being sentenced and who are going through this experience. So to see what their life is like in prison and to hear them speak about it themselves, I think, is information that's good for all of us to have. New Jersey District Judge Mary Ann Trump-Barry agrees. I love to go to prisons. I know that sounds rather perverse. But we spend so much time with our probation officers going through the computations and the permutations of the guidelines that it's nice to see the product of what we have done. And when we say two point enhancement, four point enhancement, upward, downward, we're dealing with lives. Something we don't remember enough. I think it's really important that probation officers, judges, prosecutors, and defense attorneys all make these trips just to remind us of what it is we do. The visit emphasized the human impact of sentencing to District Judges Joe Billy McDade and Juan Perez Jimenez. To me, it was very important to sit down with four inmates as we sat down and to hear the stories, to see how it was that they got into problems. And to listen to the experiences that I had with this system, I was very impressed with the sincerity of the inmates when they stated how was it that they came into the system and what sentence they got. I saw the end result of what I do when I sentence people. That's always dramatic and impressive. And it reinforces my desire to get it done right. It reminded me of the need we have to do a better job with the guidelines of trying to fit a sentence to the defendant. And this reflects the need we have to work closer with our probation people. Judge Perez Jimenez agreed that probation officers' input and advice on departures and other guidelines issues can help judges make better sentencing decisions. The judges depend on probation officers to bring the complete picture of that individual that we are gonna have before us for sentencing. I would then recommend to probation officers that they be as thorough as possible. That's their main concern or should be their main task in this. And then be frank with the judge. In exercising their responsibility, judges can gain significant benefit from prison tours, Judge Perez Jimenez said. I think the judges, whenever they have an opportunity to visit institutions that they do so. So as Judge McDade said, we see the final results of our job as sentences. As the judges and officers interviewed in the previous story emphasized, seeing and talking with prison inmates can serve as a vivid reminder of what's at stake in sentencing. Panelists in a discussion on judicial discretion and departures explored the importance of departures and arriving at just sentences. Judge McDade elaborated on his view of the probation officer's role in determining departures that will hold up on appeal. As judges Gerald E. Rosen and Joe Billing McDade acknowledged, tension between conflicting goals and sentencing is nothing new. The whole notion of attempting to achieve uniformity and proportionality on the one hand in sentencing with looking at the individual on the other hand and attempting to impose a sentence that is consistent with individual characteristics has been around since biblical times. It occurred to me, and we do this every day. We incorporate both of these concepts of justice in our everyday approach. Think of your children. To me, the rub is, the system ought to have a good balance and mix where one could easily incorporate these two concepts, which are not mutually exclusive, into our legal culture. What is relatively new is an increased interest on the part of some district judges triggered by the 1996 Supreme Court decision in Coon v. United States in using departures to achieve that balance. In Coon, the court held that appellate court review of a departure decision should be limited to the question of whether the sentencing court abused its discretion. The court noted that before departure is authorized, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases. The court also noted that the guidelines manual provides considerable guidance by recognizing certain factors as encouraged, discouraged, or forbidden. Now, in light of nearly three years of appellate decisions following Coon, panelists discussed the ways in which that case changed the legal landscape. Now, I believe the real import of Coon has been a psychological effect upon district judges. No one really taught us about departures. And we got all these opinions down from the circuit court, and I'm in the seventh circuit, that made you say, hey, I can't depart. And I think Coon sought to change that mindset. The Coon decision also provided district judges with guidance about how to depart. If Coon does anything, in addition to saying that we, as district judges, get more discretion and that the circuit judges at least should be more deferential to some of our discretionary calls on these issues, if Coon does anything, it does give us a framework to work within. And I think that that is something that is helpful. The framework suggested in Coon and refined in court of appeals decisions is depicted in a departure roadmap created by the commission. You look at the type of factor that we're talking about. So here we're talking about ever in conduct. And you ask yourself, is this the kind of a factor that may take the case out of the heartland of the cases? Then you get to whether it is encouraged in the guidelines, whether it is discouraged, whether it is unaddressed. If it's encouraged, you look at two questions. This roadmap illustrates the standard for when a departure is or is not an abuse of discretion. Judge McDade said team members other than judges should play an active role in crafting departures that meet the standard. We aren't getting as much help as we should from our probation people, and certainly not from the defendant, in suggesting to us bases for departure. They aren't giving us a rationale that we need in terms of the structure of the guidelines. The lawyers make the argument, and basically, they are arguing the general purposes of sentencing. Well, I know that, hey, that's not going to cut it. I can agree with you 100%. But unless I tailor my departure to the guidelines, I'm going to get reversed. Judge McDade urged other sentencing judges to seek help from probation officers, as he does himself. I've read that precinct's report. And if there's something that strikes me, that this seems a little bit unusual here, maybe there should be some departure. I was sent to the probation officer. Did you consider a departure on this basis? And we might talk about it. And I might say, look, well, look, go back and really work at this hard, because I'm not satisfied. And I think we should do that more often to encourage our probation people that they have a responsibility to us, to assist us in applying the departure guidelines. After that discussion, our perspectives producer asked Circuit Judge William W. Wilkins, Jr., former chair of the Sentencing Commission, for his thoughts about what Coon and its progeny mean for probation officers. The Coon allows more departures, at least the availability of more departures, either way. And the probation officer being the eyes and ears of the court is going to be that person to whom the district judges will look for recommendations. I think it's incumbent upon all probation officers to become very familiar with the Coon decision and its application. You can find the departure roadmap on the Sentencing Commission's web page at the address now on your screen. Departures as well as enhancements and other issues involving specific guidelines were taken up by a panel that addressed circuit conflicts. After guidelines are adopted by the Sentencing Commission and approved by Congress, their application is subject to interpretation by the courts. And appellate opinions in different circuits may take opposing views about some guidelines. Institute participants had the opportunity to learn more about conflicts involving eight separate guidelines issues, including downward departures for aberrant behavior, how to count harvested marijuana plants under the drug trafficking guideline, downward departures for substantial assistance, and upward departures based on dismissed or uncharged conduct. For each issue, two judges first presented the opposing arguments. Then, participants were asked to provide input on how the Sentencing Commission should resolve these conflicts. We'll give you a glimpse of how the process worked on one of the issues. Judge Wilkins, a member of the Criminal Law Committee, described how the results of participants' votes might be used. Your votes will be tabulated. And given to the commission, when the new commissioners are finally appointed for their use, is they will, in reality, begin to address these same issues. Judge Wilkins explained that in the 1991 decision, United States v. Braxton, the Supreme Court strongly affirmed the role of the commission in resolving inter-circuit conflicts. The Braxton opinion observed that under the Sentencing Reform Act, the Sentencing Commission has the initial and the primary task of addressing inter-circuit conflicts and guideline interpretation. Without periodic action by the commission resolving inter-circuit conflicts, the stated goal of the Sentencing Reform Act and a national uniform sentencing system cannot be achieved. Regarding whether a court can base an upward departure on dismissed or uncharged conduct, appellate Judge William Traxler spelled out the reasoning of three circuits that have ruled against it. It's just fundamentally unfair to tell a defendant, we're going to dismiss some charges against you if you'll plead guilty to others. And he does that. And then you turn around and say, but we're going to enhance your sentence based on the ones you didn't have to plead to. And these courts say that it will undermine plea bargaining first to tell a person and let a court use discharged or dismissed charges against a person. Also, it gives a prosecutor a chance, they would say, to punish a defendant when they may not have the proof to do so. District Judge William Osteen discussed the decisions of six circuits holding that a court may consider dismissed or uncharged conduct that has some relation to the crime of conviction. So this line of courts has said, in those situations, you have a right as a sentencing court to consider unusual events that occur that are not really allied with the crime that the person is pleading guilty to, so long as there is reliable information on which to base it. And the distinction that's made here is whether or not it relates to the same type of offenses. Judge Wilkins asked Sentencing Commission General Counsel John Steer whether decisions allowing upward departures based on uncharged conduct would violate the commission's policy on acceptance of plea agreements. Well, that's what has been argued by those who have interpreted the policy statements in Chapter 6 of the manual and other provisions, like 1B1.4, to disallow that kind of an upward departure. I think that while there are words there that you can put together to make out that kind of an argument, it's probably a little much to read all of that into what the commission wrote in Chapter 6. Before the vote on the issue, Judge Kason clarified participants' choices. We didn't try to cut it fine enough to distinguish between allow and encourage or prohibit and discourage, but just take it as a chunk like that, allow or encourage on the one hand versus prohibit or discourage on the other hand. In recommending commission action, participants agreed with the minority view of the seventh, eighth, and ninth circuits. By the widest margin of the vote on any issue, 78 to 49, they decided that the commission should prohibit or discourage upward departure based on dismissed or uncharged conduct. Some probation officers found the discussion of circuit conflicts enhanced their understanding of the guidelines as Chief Probation Officer Ray Frank observed. You don't often hear the opinions of other circuits other than you tend to concentrate on that law. And it's important that probation officers be aware of decisions in other circuits and how they may apply to a case at hand. The Institute earned high marks for many who attended as these final comments indicate. I have the impression that judges really care about what we think, and they want to see us. They want to hear from us about more departure issues. I definitely, from talking to a lot of the judges here, I have the impression that they don't feel that we've been identifying issues as often as we should, especially since the Coon decision. And they want to see us do it and do it within the framework of the guidelines itself to help them making their decisions. That's a biggie that I'm leaving here with. It is so useful for so many people. And it gives the opportunity for people to talk to each other and try to work through problems and to learn together. Because every day there are new changes. And every day there are accommodations that have to be made. And it reminds me that we all are working together for a common goal. Before we take you to New York for a change of pace, here's a reminder from the FJC about a couple of publications that we hope assist you in working with the guidelines. The Federal Judicial Center brings you in-depth coverage of guideline sentencing decisions. We send guideline sentencing update and its companion outline of selected appellate case law to probation and pretrial services offices nationwide. Both publications are also available on the center's JNET homepage. Guideline sentencing update and the sentencing outline, two tools from the center to help you do your job. So far in this program, we've seen how national sentencing policy is influenced by interaction among officials and government entities. Sentencing practice at the local level may also benefit from interaction. For example, the Southern District of New York recently took the lead in engaging the cooperation of other agencies to deal with a challenge the office faced. In the spring of 1997, New York Southern's probation office began to experience an increase in its pre-sentence investigations. Eventually, the increase became 39%. We were expecting choppy waters, but by September, we were seeing a tidal wave. And we really had to address that problem. Chief probation officer Chris Stanton and his staff did not think traditional solutions would work. They had a different idea. Why could we not have a group of officers who could do sentences, sentencing, pre-sentences, faster than Rule 32 reflects? Deputy Chief Mark Rosenfall had recently participated in the FJC's System Impact Seminar. The System Impact Seminar is a problem-solving model that teaches how to evaluate the problem and find solutions. And that's what we applied in order to create this program. The expedited sentencing program shortens the time to prepare the pre-sentence report and asks defendants to waive the second disclosure of Rule 32. I am a big fan of expedited sentences in the appropriate case. Everyone involved agrees that expedited sentencing is appropriate only for cases in which there's a plea agreement, there's no controversy, the guidelines calculations are not complicated, and there are no departure issues. And then if they answer my questions appropriately, I make explicit finding on the record that there has been a knowing and voluntary waiver of their rights under Rule 32. The clients are required to waive the time periods in Rule 32, but they're not required to waive the right that animates that rule, which is the right to have a sentencing based on accurate information. The probation office knew that the program's success depended on the cooperation of all agencies involved. I believe once they saw that it would benefit them as well that they were eager to participate. At heart, for every one of these cases, there's a person behind it, and that person is my client. And when I have clients who can benefit from the expedited sentencing program, I do what I can to make it happen for them. My office prosecutes over 1,000 cases a year, and so to the extent that this program facilitates the movement of several hundred cases on the calendar more quickly, that's a benefit to my office. We have a prison problem, a space to place our prisoners. And anything we can do to expedite moving prisons through the system is a benefit to us, not only in opening up more prison beds, but saves us a manpower holding prisons here. It cuts down the amount of times we have to move prisoners in and out. The heart of the program is the probation officers who volunteered to be on the expedited sentencing team, and their supervisor, Bernadine Fields. I'll call my counselor if I can do it today. Use your natural charm. I know New York has a lot of cliches, a lot of slogans, and one of them is the city that never sleeps. This team is what I'm concerned is the team that never sleeps. And the keyword is timeframe and speed. Okay, I'll let you know what I find when I do the rap sheet, and I'll call everybody to set the interviews up. Okay. It was the same work. We just do it faster. And I prefer to do it that way. Cuts down under procrastination. You know, you get the case, you do everything basically the first day. By the second day, you know, you have all the information from the government, from the defense, you set your interview up. Basically, you're rolling. It's not more work, but we have to provide the information more quickly. There's one thing when you call somebody and say, can you stop what you're doing? And fax this to me now. So we more or less have to, I guess, be nicer, just develop closer relationships with them and make them want to do that. But they really know what they're doing and they really know what's important and what's not important. You'll write the memo to the judge and you'll explain the circumstances. Did you've attempted to contact the defense attorney now? And whether or not the judge wants us to proceed and interview the defendant in absence of defense attorney. So as far as this nice number that shows up on that rap sheet, that's the brother's nice number. The expediting team and management agreed that several resources are essential. The officers have immediate access to administrative assistance to pick up and deliver documents. I need to get a rest reports. Pretty quick, there's two there. The officers are frequently mobile so cell phones are part of their arsenal, as are laptops and beepers because they often work at home or in transit. The dedication of the team and the cooperation of all agencies has paid off for the district. I've had enormous success in working with our probation department on the expedited sentence program. It increases the likelihood that I will actually remember the defendant when I sentenced them. We've been able to reduce the number of pre-sentence investigations assigned to the rest of our offices because of what the expeditors are doing. But the program is not only about numbers. You did your job, you did it well, you did not sacrifice quality for expediency and you can move on and feel good about starting with your next case. Now, a few items for your information. First, the latest news from the FJC. On April 12th, Chief Justice Rehnquist announced that the Center's Board selected District Judge Fern Smith of San Francisco as the new director of the Federal Judicial Center. Judge Smith succeeds Judge Riaz Obel who in July will return to the U.S. District Court in Massachusetts after four years as director. Since 1996, Judge Smith has served as chair at the Judicial Conference Advisory Committee on the Rules of Evidence. She's been a district judge in California since 1988 and has written and spoken extensively on evidentiary matters, trial practice, and other topics. Returning briefly to the subject of sentencing, the probation officer's role in recommending departures was a topic covered not only at the Sentencing Institute but also at recent new officer orientation training at the Center. Rusty Burra said the U.S. Sentencing Commission encouraged officers to be alert to situations that may warrant a departure recommendation. You will have this experience, you may not have it at this point, but you will develop this experience as though what looks like a typical kidnapping case? Does this look like the typical kidnapping case or is this unusual? What makes this case unusual? And does this factor make it unusual enough that you ought to go outside what the guidelines call for? And so always keep departures in mind because a departure is something part of the guideline system. And just as being a U.S. probation officer and looking at what are the factors that are appropriate for the application of the guidelines, you should also be looking in every case to see if there's something that might be an appropriate factor for giving a sentence outside of the guidelines. Jewel Owens is the latest recipient of the Center Certificate of Outstanding Achievement for her contributions to training and education. A supervising probation officer in the Eastern District of Michigan, Jewel has been on the faculty of more than 10 different center programs in the past decade. She's taught testifying skills, first-line safety, and other subjects in numerous districts. On a national level, she's served as faculty at New Officer Orientation and shared her experience with new faculty in the Train the Trainer program. We could go on at length extolling Jewel's hard work and dedication, but for now, we'll just say thanks, Jewel, and congratulations. The fourth class of the Leadership Development Program marked the completion of their three-year curriculum with a ceremony in the FJC's auditorium in Washington, D.C. Guest Speaker, District Judge Thomas F. Hogan spoke of the program's impact on the system. By getting into this program, you develop such strong leadership and leaders and managers that help you achieve your mission, which is essential in our court tradition that you become strong leaders. And Court Education Division Director Emily Heapner outlined the multiple roles of leaders in the future. They are being a negotiator, learner, advocate, resource manager, visionary, or planner. These roles have influenced our programs and what we have developed for you, and I hope that they will also influence the career and where you are heading from here. Program participant Danny Kuhn of the Southern District of West Virginia spoke for all of his colleagues. This group of experienced probation and pretrial services officers has benefited from many training initiatives over the years, but no experience has challenged us and helped us to grow like the Leadership Development Program. It has shown that opportunities to lead exist all around us. Awarding Certificates is the LDP's final event. And are in this project on the Offender Orientation Program for the U.S. Probation Office. But the knowledge acquired and the friendships made will stay with these officers throughout their careers. The Center is making available a 40-hour self-study course for supervisors. Foundations of Management was originally developed by the National Independent Study Center. Case scenarios and exercises have been adapted to reflect the work of probation and pretrial services managers. To request a copy, please call 202-502-4114. Identifying and developing case management tools to assist officers with their pretrial supervision responsibilities is the focus of a study being conducted by the FJC's Research Division. The research is in response to a request from the Criminal Law Committee for a study to determine the usefulness of such tools for pretrial services. It builds on work that the Center has already completed to help probation officers carry out post-sentence supervision through the Risk Prediction Index. The first phase of the two-pronged feasibility study, an exploratory analysis of already automated pretrial data from the AO and the Sentencing Commission has been completed. The second phase, scheduled to be finished by the end of September 1999, involves collection and analysis of case file data from a sample of recently closed pretrial cases from five districts. We'll report on the study's results. As of this broadcast, the US Sentencing Commission remains without commissioners due to disagreements between the administration and Congress over nominees. Despite this, the staff continues its work on issues raised by previous commission members and congressional directives. Recently, the staff held its first public briefing for the commission's constituents. Probation officers, representatives from the AO and its federal corrections and supervision division, the Department of Justice, the Defense Bar and the US Parole Commission, as well as congressional staff, attended. Interim Staff Director of the Sentencing Commission, Jim McGrath, explained the briefing's purpose. So that you'll be able to engage us and then engage the commissioners in how you feel about the issues that they'll have to address when the new commissioners come on. The commission's Director of Education and Sentencing Practice, Sharon Hennigan, emceeded the briefing. We wanted to share with them things that we're working on, projects that we're working on. And we frankly wanted to let them know that we are working. We are without commissioners, but we continue to feel strongly about our mission of service to not only probation and pretrial, but the federal courts. Policy initiatives which were discussed included firearms issues, the Sexual Predators Act, the definition of loss, identity theft, telephone cloning, and the No Electronic Theft Act. As you may know, the relevant guideline obtained to intellectual property offenses is 2B5.3 copyright and trademark infringement. That has a base offense level of six and contains a specific offense characteristic that provides for increasing offense levels depending on a calculation using the retail value of the infringing item, that is the counterfeit item. And therefore it would appear on its face that some amendment to the guideline would be required to meet the second directive at least. Commission Chief Deputy General Counsel Andy Purdy reported on economic crimes. The staff's work in progress represents discussion with the Criminal Law Committee and review of the field test of the April 1998 proposed guidelines. Purdy elaborated on the definition of loss. Concerning actual loss itself, the April version said that losses reasonably foreseeable harm that resulted or will result. The January version said that it's the net reasonably foreseeable pecuniary harm that resulted or will result in the ordinary course of events. Purdy went on to say that the current version requires only a reasonable estimate of loss to determine the applicable offense level. The suggestion is that the courts don't have to come up with every single dollar in every single case of loss. And what you're trying to do is come up with a dollar amount that puts you in a certain range. And the new tables would move from one level increments to two level increments of loss to be broader amounts of dollar amounts in particular levels. And as long as they can support the finding that takes you to a particular level, less effort need be put into coming up with the exact dollar amount of the loss. Greg Hunt, head of the Sentencing Commission's Probation Officers Advisory Group, was pleased with the briefing. I thought it was excellent. I feel that they'll be ready to go forwards with those issues once we do have some commissioners. Hunt did raise a question about an issue not on the briefing's agenda, the reduction for acceptance of responsibility. And if it's an automatic reduction, then why not change the guidelines to make it a two level reduction when someone pleads guilty? And we would like to look at that issue and study it more thoroughly. On the briefing's agenda was information about the Sexual Predators Act. The legislation expands the definition of sexual activity. Now it includes crimes such as transporting minors for the production of child pornography. So the meaning of the term sexual activity no longer requires that a sexual act actually occur. Montgomery went on to explain that the act has six directives for the commission, requiring a look at several guidelines. And to add an enhancement, it's a defendant use a computer with the intent to persuade, induce, entice, or urge, or otherwise facilitate the transport of a child to engage in illegal sexual activity. Also at the briefing was AO Assistant General Counsel, Kathy Goodwin. We need this kind of information to be able to be informed and be able to move the process forward when a commission is established so that we have something tangible to respond to, both the probation officer's group and the committee. The commission staff felt the briefing was a success. In terms of what our mission was to share information and make sure that those who we work with understand that we're continuing to do the work that we can. We were very pleased to get that word out. Once again, we're delighted to welcome David Adair to bring us the legal perspective. David, good to have you back. Thanks, Robin. I'm glad to be back. I think we caught a glimpse of you and the audience in one of those panel discussions at the Sentencing Institute. Did you learn anything that you'd like to share with our viewers? You're right, Robin, I was there and the Institute was an excellent opportunity to learn particularly how different sentencing issues are handled by the various districts. Many issues were discussed, of course, but one that I found particularly interesting was not discussed in any detail and it's an issue that's as old as the guidelines themselves and that is who will defend the pre-sentence report when it differs from the stipulation of the parties? In fact, the pre-sentence report has no defender and it needs no defense. It's a neutral document prepared by the court's independent investigator. The role of the probation officer is not to advocate any position but simply to provide the court with an independent assessment and a recommendation. Naturally, the officer has an interest in assuring that the parties and the court understand the pre-sentence report but this should not lapse into advocacy. The court in United States versus Cifuentes recognized this and suggested that there was a line beyond which explanation of the report becomes advocacy and that is not appropriate nor is it within the legitimate role of the probation officer. But beyond theory, this is a frustrating issue for officers, I recognize that. It often seems like all the hard work that officers put into the pre-sentence report is ignored but even if it seems to be ignored in a given case it's still of critical importance in the guideline system to have an independently prepared pre-sentence report and there are several reasons for that. First, unless the court has accepted an 11E1C agreement the court's not bound by the stipulation of the parties. Second, the pre-sentence report serves as a check to the parties. It serves to ground the plea negotiations. If the parties know that an independently prepared pre-sentence report is going to be presented to the court they're going to at least consider that in their plea negotiations. Now this is particularly true when you look at it in the long run because even if the report is not followed in one case the parties are going to know that in the next case there's going to be another pre-sentence report that they have to consider. Third, and this was mentioned several times during the course of the Institute the pre-sentence report is particularly valuable in enabling the court to assess departures. The court, this is an area in which the court has judgment if not discretion and the pre-sentence report can provide valuable assistance. And if grounds for departure are included in the pre-sentence report this not only provides notice to the parties that the court may consider a departure but it may alert the parties to issues they hadn't considered or may state issues in a way that they hadn't considered. And that will help the parties in advocating appropriate departures. Fourth, the pre-sentence report goes to the sentencing commission for research purposes. The commission of course compares the report to the actual sentence imposed and that way is able to assess whether or not adjustments are necessary in the guidelines. And finally, the pre-sentence report goes to the Bureau of Prisons for classification and other purposes. So remember, this is not a contest. Even if the report is not followed in the given case the officer has not lost anything. It's the preparation of neutral and accurate pre-sentence reports are of critical importance to the entire system. It's good to know that all that hard work serves so many important purposes. That's right. Have there been any recent developments that officers should know about? Fortunately, Robin, nothing earth-shattering but one issue of importance to pre-trial services officers I think they should know about. A district court in the Northern District of Texas has found that the provisions of 18 USC section 3148B which permit the government to initiate revocation are the exclusive means to initiate revocation. In other words, if a pre-trial services officer presents a violation or information regarding a violation to the court as he must under the provisions of section 3154 the judicial officer does not have the authority to revoke release unless the government requests revocation. Now this case was United States versus Herrera. Now this is not a new issue. It's been around for some time. But I understand that in most courts the judicial officers have determined that the U.S. Attorney's Office and the judicial officer have concurrent authority to initiate revocation proceedings. Now Herrera also is not binding on other courts. Officers should remember this and I'm not suggesting that officers, pre-trial services officers do anything differently than what they're doing now. But if the issue comes up in your district you may find the opinion of the Office of the General Counsel helpful that appears on the JNET. It's a letter dated February 21, 1996. Okay David, how about any frequently asked questions that you think officers might be interested in? Well there were certainly frequent questions since we talked last but there is only one frequently asked questions that I wanted to bring to officers' attention in this program. And that concerns revocation proceedings. And the ability to add new grounds for revocation after the expiration of the period of release. And this is a situation that comes up when the officer files a Form 12 that sets out various grounds for revocation. Supervision expires. The officer then discovers new grounds for revocation, violations that occurred during the supervision period. My office had previously taken the position that at that point those newly discovered grounds could not be used in considering revocation. But in examining this question it appears that that position was not justified by the case law or statutory language. And it resulted in rewarding offenders for avoiding detection. So my view now is that so long as number one a warrant or summons is issued within the supervision period. Two, the newly discovered violation occurred within the supervision period. And three, the offender receives adequate notice of the new ground prior to the hearing. The court can consider these newly discovered grounds in determining revocation. Of course, even if the court doesn't use these new grounds for revocation, certainly the court can consider them in determining any sanction should the court proceed to revoke probation or supervised release. This is an issue that's explained in more detail in a letter that again is on the JNET and the letters dated May 9, 1996. Shall we remind viewers how to get in touch with your office? Well, that's a good idea, Robin, particularly since we have a new voicemail number. It's now 202-502-1120. And again, I ask that officers try to exhaust local resources before they call. And if they use that voicemail number, the advantage of that is that we can do research and by the time we get back to officers we should have the answer to their question. David, thanks very much. Thank you, Robin. Before we finish up, a couple of reminders. Please note this date on your calendars. On July 29th, the FJTN will broadcast a two-hour program on mandatory restitution. The program will feature a step-by-step process for determining victims' and compensable harms for restitution purposes. It will highlight segments of a presentation made at the National Seminar on Sentencing Guidelines that will be held in May. Advanced registration is required. Please see the FJTN Bulletin for more details. Also, don't forget that Court to Court, the TV Magazine program for all court personnel, will air on June 17th with a report on how courts can handle high-profile cases such as the Oklahoma City Bombing and Unabomber Trials. It will also feature stories on managing death penalty cases and helping attorneys use electronic case filing. We hope you'll tune in to both of these programs. This has been our third edition of Perspectives. We hope the program has become something you mark on your calendar and look forward to. We've tried to be responsive to the ideas and suggestions we've gotten so far, and we're looking for more. What did you like most and least about this program? What do you wanna see in the next one? When you get back to your office, please fill out the Perspectives Evaluation form on the FJC home page. You can find that by going to the address on your screen and selecting online evaluation at the bottom of the Perspectives page. You can also fax your evaluation to us at 202-502-4088. That's our program for today. Thanks again for joining us. Keep those emails and faxes coming, and we'll see you on September 16th for the next Perspectives.