The best things in life are free, but sooner or later the government will find a way to tax them. ~Author Unknown
An Interview with Judge Richard P. Conaboy, Chairman of the U.S. Sentencing Commission
Judge Richard P. Conaboy (M.D. Pa.) was sworn in as chairman of the U.S. Sentencing Commission on November 4, 1994, for a term that will expire October 31, 1999. He was named to the federal bench in 1979 and served as chief judge of his district from 1989 until taking senior status in 1992.
Q: Do you have specific goals you seek to accomplish as the chairman of the U.S. Sentencing Commission?
A: I've only been with the commission since November, and it has taken me and the other commissioners a while to look at all the duties of the Sentencing Commission that are assigned by statute and to analyze what we do. But I've set a general four-step agenda for my term. The first step is to continue what I call our normal and assigned tasks-things like monitoring, research, training, running symposiums, and responding to congressional directives.
The second step of my agenda is to expand our program to measure the success of the guidelines process by developing measurement tools to see if we are fulfilling the congressional mandates that were outlined when the concept of the Sentencing Commission was ordained.
The third step is to begin what I'm calling a simplification project and study. I hope to bring in a consultant with experience in criminal guidelines and sentencing to work with us to see if we can't make our guidelines a little bit easier to use, and perhaps to inject into them some more discretion, and to make them easier to understand.
The fourth step of my agenda is to begin a program to measure the best use and potential of the staff as presently allocated. We have what I think is an excellent staff, and I want to be sure everybody is being used to his or her best potential.
Q: Do you think that the Sentencing Guidelines are meeting the original goal of making sentencing uniform?
A: That was one of the first things I asked when I became chairman. It's very difficult because you are making a comparison between an organized sentencing methodology and what in the past was total freedom without any restraints. We can say with accuracy that sentences now are more uniform, and we hope they're more proportionate because every sentencing judge now starts from the same place in terms of which sentence should be imposed. I don't think our departure rate is terribly high. The rate of sentencing within the guideline range has been over 75 percent. But you have to look at the numbers carefully because a lot of the departures are either by plea agreement or are brought about when the defendant cooperates and gets the benefit of a government motion for a downward departure. Such cases are not what we would normally think of as a departure based on the judge not thinking the sentence was proper.
Q: Into this mix, Congress has thrown mandatory minimum sentences. How do they affect the work of the commission?
A: They make our work difficult. It's very hard to run a true sentencing guidelines process while constrained by mandatory sentences. The two are almost incompatible. As a matter of fact, many sentences in the federal guideline system are driven by mandatory minimum penalties that were in existence at the time the first guidelines were adopted. That's one of the areas of greatest criticism of the guidelines.
I don't think there's any system that invites more criticism than mandatory minimum sentencing, because you just cannot fashion one sentence that fits every situation and every defendant and still takes into consideration all of the aspects involved in every criminal act.
Q: The commission recently released what is known as the Crack Report. What were its findings? What has been the reaction?
A: The Report on Cocaine and Federal Sentencing Policy provides very vivid examples of the kinds of problems we encounter with mandatory sentencing. In such cases, defendants who were in possession of rather small, comparatively speaking, amounts of crack cocaine often were sentenced to greater time in prison than the people who supplied the original product to them. Crack cocaine is made from powder cocaine; it happens to be cheaper and easier to make and use than powder cocaine. As a consequence, crack gets distributed in the poorest segments of society. Those people are being punished much more severely than powder cocaine suppliers and dealers. That's a good example of how mandatory minimums, even if they came into existence with the best of intentions, do not work fairly.
We've received many comments about the cocaine report. At our public hearing in March, about 40 people testified, at least a dozen of whom spoke about the problems caused by mandatory sentencing. We have not had any direct testimony or statements from Congress, although I and some of my staff have met with a number of members of Congress and their staffs to discuss the report. I think it's safe to say that most people are in agreement that the current 100:1 quantity ratio has to be changed. What it will be changed to, of course, is problematic. We're working on that, and we hope to take some action on this issue at our April meeting.
Q: Now that the Crack Report has been issued, are there other studies or projects in the pipeline?
A: Yes, we have a couple of others that are very interesting. We're in the midst of a study on the role race plays in federal sentencing practices. We have another study on the issue of people being given credit for substantial assistance. And we have a third one, the just punishment study, which I think is going to be very interesting. We're trying to determine public perceptions of the appropriate kinds of sentences for a variety of federal offenses.
For the most part, I don't think the public has any idea how severe the sentences are under the guidelines. The perception of the average person on the street seems to be that sentences should be more severe. But when the guidelines were passed, parole was also abolished in the United States courts. Consequently, people who are sentenced to five years or ten years serve essentially all of that time, except for a modest reduction for good time that they can accrue over a period of years. That's why our prisons are so overcrowded.
Q: There was a time when the commission was unpopular with federal judges. What's the relationship like today?
A: We still get a considerable amount of criticism-some from certain judges and probation officers who feel individual judges should have more discretion on individual sentences-that the guidelines are very constraining and that the method of going beyond the guidelines is very complicated and difficult. We get other criticism that the sentences are simply too severe, particularly for first offenders. The third line of criticism is that there is not enough attention paid to or room allowed for alternatives to prison sentences, such as home detention, intensive probation, or community detention. We seek opportunities to talk to judges. We have a number of advisory groups, and we try to respond to their concerns. Of course, in trying to respond, the commission has developed another layer of criticism: we're accused of offering too many amendments year after year, and people say they have a hard time keeping up with the amendments to the guidelines.
Q: What were your reasons for taking on the chairmanship of the commission?
A: I think it was Theodore Roosevelt who said something to the effect that every member of a profession owes some time and effort toward making the profession work better. I've always believed in that principle, and it has gotten me into a lot of very time-consuming, non-paying, but rewarding jobs. When you consider that crime control is a major concern of every citizen of this nation, sentencing-the area in which the courts are most directly involved-has to be one of the most important things that federal judges do.
When I first came on the bench at the state level, and when I got to the federal level in 1979, there were no guidelines of any kind. There was no direction given and no procedure judges followed that made any sense at all. The types of sentences imposed were left to good judgment, common sense, and experience. Sometimes that works well and sometimes it doesn't. I think most judges are much more content when they have a process that can be followed that leads to a sound and reasoned judgment. It's my hope that we still can make the guidelines work to achieve that result.
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