An Interview with Judge Richard P. Conaboy, Chairman of the U.S.
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
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
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
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
Q: What were your reasons for taking on the chairmanship of the
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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