A Sketch of the PROTECT (Amber Alert) Act and the Sentencing Guidelines

Order Code RS21522

May 16, 2003

CRS Report for Congress

Received through the CRS Web

A Sketch of the PROTECT (Amber Alert) Act

and the Sentencing Guidelines

name redacted

Senior Specialist

American Law Division

Summary

Title IV of the Protect Act, P.L. 108-21 (S. 151/H.R. 1004), sometimes known as

the Amber Alert Act: (1) restricts the future membership of the Sentencing Commission

to no more than 3 federal judges; (2) limits downward departures from the sentencing

guidelines in various child or sex offense cases; (3) regardless of the offense requires a

motion by the government to trigger the offense level reduction available for acceptance

of responsibility in serious cases; (4) demands that in the case of either an upward or

downward departure the court’s statement of its reasons for the departure be in the

written order of judgment and commitment; (5) adjusts the standard for review so that

rather than giving deference (absent clear error) to a trial court's decision to depart from

the guidelines an appeals court is to make its own assessment of the appropriateness of

departure (de novo review); (6) instructs trial courts whose departure decisions are

overturned on review to adhere to the sentencing guidelines and any appellate directives

when the cases are returned to them for resentencing; (7); directs the chief judge of each

federal judicial district to ensure that full sentencing reports (available to the Judiciary

Committees) are filed with the Sentencing Commission; (8) calls for review and reports

to Congress from the Department of Justice and the Sentencing Commission on action

taken in response to the legislation; (9) eliminates the requirement that the crimes

involve more than a single victim before some of the sentencing enhancements for

recidivist sex offenders take effect; and (10) amends the guidelines governing

possession or trafficking in child pornography to include sentence level increases

ranging from 2 to 5 levels depending on the number of images involved.

This is an abbreviated version of CRS Report RL31917, The PROTECT (Amber

Alert) Act and the Sentencing Guidelines.

Introduction. Title IV of the PROTECT Act amends the sentencing procedures

used in federal cases, particularly those involving sex offenses and other crimes against

children.

Sentencing within the federal criminal justice system is governed to a large extent

by United States Sentencing Commission’s sentencing guidelines. Congress authorized

Congressional Research Service ˜ The Library of Congress

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the Commission to construe and maintain the guideline system in order to eliminate the

disparity that unguided, judicial sentencing discretion might produce. The guidelines

establish a series of steps, calibrated according to the seriousness of the violation, beneath

the statutory maximum provided for a particular offense and above any applicable

mandatory minimum sentence.

The guidelines process is essentially a score card process. Most federal crimes have

been assigned to an individual guideline that provides a “base offense level” and that adds

or subtracts “offense levels” to account for the presence of any of a list of identified

aggravating or mitigating circumstances. The final offense level score requires a sentence

within one of six relatively narrow sentencing ranges. The six ranges vary in severity

according to the extent of the offender’s criminal record. Heretofore, a sentencing court

might depart either upward (impose a more severe penalty) or downward (impose a less

severe penalty) from the applicable guideline sentencing range if it found “that there

exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in formulating the guidelines,”

28 U.S.C. 3553(b).

The Act’s amendments to the guideline process, added during debate in the House,

149 Cong. Rec. H2420-437 (daily ed. Mar. 27, 2003), appeared to have been the product

of Department of Justice concerns over the extent of downward departures. The House

Judiciary Committee hearings on the Amber Alert proposal (H.R. 1104) were held in

conjunction with consideration of a proposal that included a change in the standard of

appellate review in sentencing guideline cases (H.R. 1161). During those hearings, the

Department of Justice recommended changes in the structure of the guidelines to reduce

the number of “downward departures” found in federal case law:

H.R. 1161 contains certain additional provisions not found in the Senate bill. In particular,

section 12 of the bill would enact long-overdue reforms to address the growing frequency of

“downward departures” from the Sentencing Guidelines. This is especially a problem in child

pornography cases.

* * *

Much of the damage is traceable to the Supreme Court's decision in Koon v. United States, 518

U.S. 81 (1996). In Koon, the Court interpreted the Sentencing Reform Act to require appellate courts

to apply a highly deferential standard of review to departure determinations by sentencing judges.

The Court also disapproved the practice whereby appellate courts had previously determined that

certain grounds of departure were impermissible. Instead, the Court held that any factor not explicitly

disapproved by the Sentencing Commission (or by statute) could serve as ground for departure, in an

appropriate case as determined by the district court in its discretion.

Under Koon, judges who dislike the Sentencing Reform Act and the sentencing guidelines have

significant discretion to avoid applying a sentence within the range established by the Commission,

and it is difficult for the Government effectively to appeal in such cases. Consequently, the rates of

downward departure have steadily accelerated since Koon. Moreover, Koon's expansion of the

permissible grounds of departures had led to a growing trend of increasingly vague grounds of

downward departure. . . .

Section 12 of H.R. 1161 would provide much-needed and long-overdue reform by establishing

that decisions to depart from the godliness are to be reviewed under a de novo standard of review.

To that extent, Koon would be explicitly overruled. While we enthusiastically support this measure,

we do not believe it goes far enough. We strongly urge the Subcommittee to include appropriate

language that would overrule both of the key holdings in Koon. Specifically, the bill should include

language that would prohibit departures on any ground that the Sentencing Commission has not

affirmatively specified as a permissible ground for a downward departure. In doing so, the bill would

effectively overrule Koon on this point as well. H.R.1104, The Child Abduction Prevention Act and

H.R. 1161, the Child Obscenity and Pornography Prevention Act of 2003: Hearing Before the

Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 108th

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Cong., 1st Sess. (2003)(statement of Assoc.Dep.Att'y Gen. Daniel P. Collins), available at

www.house.gov/judiciary.

The Committee reported out H.R. 1104, but not H.R. 1161 or any language

addressing the Justice Department's concern over downward departures, H.Rept. 108-47

(2003). During debate, however, Representative Feeney offered an amendment that

incorporated sentencing guideline modifications into the bill and that echoed the

sentiments of the Justice Department.

Mr. Chairman, this amendment addresses long-standing and increasing problems of downward

departures form the federal sentencing guidelines. According to the testimony of the Department of

Justice, this is especially a problem in child pornography cases.

Although the guidelines continue to state that departures should be very rare occurrences, they

have in fact proved to be anything but. . . .

* * *

Increasingly, the exceptions are overriding the rule. . . . The Department of Justice believes that

much of this damage is traceable to the Supreme Court’s 1996 decision in Koon versus the United

States. In the Koon case, the court held that any factor not explicitly disapproved by the sentencing

commission or by statute could serve as grounds for departure. So judges can make up exceptions

as they go along. This has led to an accelerated rate of downward departures.

Judges who dislike the Sentencing Reform and the sentencing guidelines now have significant

discretion to avoid applying a sentence within the range established by the commission, and it is

difficult for government to effectively appeal such cases.

The amendment I offer today contains a number of provisions designed to ensure more faithful

adherence to the guidelines so defendants in cases involving child pornography and sexual abuse

receive the sentences that Congress intended., 149 Cong.Rec. H2422-423 (daily ed. Mar. 27, 2003).

The amendment passed, and the language of H.R. 1104 was substituted for that of its

Senate-passed counterpart, S. 151, 149 Cong.Rec. H2436-443 (daily ed. Mar. 27, 2003).

The Senate version of S. 151 had no language comparable to the Feeney amendment, but

the conferees accepted a revised version of the amendment, H.Rep.No. 108-66 (2003).

The bill with the revised amendment passed both Houses, 149 Cong.Rec. H3075-76,

S5156-157 (daily ed. Apr. 10, 2003) and was sent to the President who signed it on April

30, 2003, 117 Stat. 650 (2003).

Composition of the Sentencing Commission. The Sentencing Commission

consists of seven members, 28 U.S.C. 991. Five of its current members are federal

judges. The Act provides that hereafter no more than three members of the Commission

may be federal judges, although the limitation does not apply to any of the judges serving

on or nominated to the Commission at the time of enactment, 28 U.S.C. 991, 991 note,

117 Stat. 675 (2003).

The limitation of judicial service presumably opens the Commission to broader

representation from the academic and professional communities. Opponents of the

provision lamented the prospective loss of judicial expertise. Although not mentioned in

debate, judges would appear to enjoy the additional advantage of already having

successfully undergone the examinations associated with the confirmation process. Yet

perhaps the provision should be attributed in large measure to apprehensions over

possible judicial hostility towards the guidelines.

Downward Departures in Certain Child Abuse and Sex Offense Cases.

Earlier law permitted federal courts to impose a sentence outside the applicable

sentencing guideline range, if “the court finds that there exists an aggravating or

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mitigating circumstance of a kind, or to a degree, not adequately taken into consideration

by the Sentencing Commission in formulating the guidelines that should result in a

sentence different from that described,” 18 U.S.C. 3553(b). The court might also depart

from the guideline range based upon the offender’s substantial assistance to the

government, U.S.S.G. §5K1.1.

The Act changes the rules in the case of certain child abuse and sex offenses, i.e.,

cases following conviction for a violation of:

!

18 U.S.C. 1201 (nonparental kidnaping) involving a minor victim;

!

18 U.S.C. 1591 (sex trafficking of children or by force, fraud, or

coercion);

!

18 U.S.C. ch.71 (obscenity);

!

18 U.S.C. ch. 109A (sexual abuse);

!

18 U.S.C. ch. 110 (sexual exploitation and other abuse of children); or

!

18 U.S.C. ch. 117 (transportation for illegal sexual activity and related

crimes).

In such cases, the courts may depart upward based on inadequate Commission

consideration of a circumstance presented by the case, or depart downward on the basis

of a government recommendation for substantial assistance, or otherwise depart

downward only with the support of a specific authority in the guidelines to do so.

The subject matter of the legislation and the source of the concerns seem to have

dictated the selection of the crimes in the list. The Conference Report observed that,

“those convicted of sexual abuse received a downward departure [in] over 16 percent of

the cases, and [trial courts] granted reductions below the guideline range of those

convicted of sexual abuse by an astonishing 63 percent from the guideline range. For

those convicted of pornography and/or prostitution related offenses, trial courts departed

from the recommended guidelines over 18 percent of the time, reducing these defendants’

sentences by a staggering 66 percent,” H.Rep.No. 108-66, at 58-9 (2003).

Explicit Grounds for Downward Departure in Child Abuse and Sex

Offense Cases. By limiting the grounds of downward departure in child abuse and sex

offense cases except as explicitly authorized, Congress raises the question of which

downward departures are explicitly authorized. The guidelines authorize limited

downward departures for assistance to the prosecution, old age, coercion and duress,

voluntary disclosure of an offense, and physical impairment. To lessen the possibility of

inappropriate downward departures in the case of disqualifying child abuse and sex

offenses, however, the Act forecloses otherwise authorized downward departures based

on family ties and responsibilities or community ties, diminished capacity, or aberrant

behavior.

Acceptance of Responsibility. In the calculation of the final offense level and

applicable sentencing range and before the question of departure arises, a defendant’s

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offense level may be reduced if he “accepts responsibility” for his offense, U.S.S.G.

§3E1.1. The guideline governing the possible reduction has two parts. The first allows

all defendants a 2 level reduction if they “clearly demonstrate acceptance of responsibility

for [their] offense,” U.S.S.G. §3E1.1(a). The second allows an additional 1 level

reduction from an offense level of 16 or higher if the defendant announces his intent to

plead guilty and fully discloses his involvement in the crime, notifies, U.S.S.G. §3E1.1(b).

The Act amends this second part. It permits the 1 level reduction upon

announcement of an intent to plead guilty without insisting upon full disclosure, but

insists upon the motion of the prosecution to trigger the reduction.

Neither the debate nor the Conference Report explain the reason for the change,

perhaps because an accompanying change in the commentary was thought sufficient:

“Because the Government is in the best position to determine whether the defendant has

assisted authorities in a manner that avoids preparing for trial, an adjustment under

subsection (b) may only be granted upon a formal motion by the Government at the time

of sentencing,” U.S.S.G. §3E1.1, App.N. 6.

Specific Written Reasons for Departure. Prior to the Act federal courts were

required to explain the reasons for a sentence outside the applicable guideline range, 18

U.S.C. 3553(c). The Act makes it clear that the explanation must be specific, in writing,

and provided to the Sentencing Commission.

Standards for Review. Before the sentencing guidelines, a sentence within the

statutory maximum imposed by a federal court was essentially beyond appellate review,

Dorszynski v. United States, 418 U.S. 424, 431 (1974). With the creation of the

guidelines process, Congress gave both defendants and the government the opportunity

to appeal a sentencing decision, 18 U.S.C. 3742. It instructed the appellate courts,

however, to “give due regard to the opportunity of the district court to judge the credibility

of the witnesses, and [to] accept the findings of fact of the district court unless they are

clearly erroneous and [to] give due deference to the district court's application of the

guidelines to the facts,” 18 U.S.C. 3742(e).

This led the Supreme Court in Koon v. United States, 518 U.S. 81 (1996), to

conclude that Congress intended a court, reviewing the decision to grant a downward

departure, to afford the lower court's decision “due deference” in the absence of an abuse

of discretion rather than to make its own determination of whether departure was

appropriate (de novo review):

A district court’s decision to depart from the Guidelines by contrast, will in most cases be due

substantial deference, for it embodies the traditional exercise of discretion by a sentencing court. . .

. Before a departure is permitted, certain aspects of the case must be found unusual enough for it to

fall outside the heartland of cases in the Guideline. To resolve this question, the district court must

make a refined assessment of the many facts bearing on the outcome, informed by its vantage point

and day-to-day experience in criminal sentencing. Whether a given factor is present to a degree not

adequately considered by the Commission, or whether a discouraged factor nonetheless justifies

departure because it is present in some unusual or exceptional way, are matters determined in large

part by comparison with facts of other Guidelines cases. District courts have an institutional

advantage over appellate courts in making these sorts of determinations, especially as they see so

many more Guidelines cases that appellate courts do. 518 U.S. at 98.

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The Act establishes de novo review as the standard for review of whether a departure

is justified by the facts of a case, a change it was felt that “would be more effective to

review illegal and inappropriate downward departures,” 149 Cong.Rec. H2423 (daily ed.

Mar. 27, 2003)(remarks of Rep. Feeney). The new standard applies to review of upward

and downward departures in all federal criminal cases.

Resentencing After Remand. The Act creates a specific provision covering a

trial court’s resentencing in a case returned to it after its original sentencing decision has

been overturned on appeal, 18 U.S.C. 3742(g). The provision is designed to “prevent

sentencing courts upon remand from imposing the same illegal departure on some

different theory,” 149 Cong.Rec. H2423 (daily ed. Mar. 27, 2003)(remarks of Rep.

Feeney). It applies in all criminal cases and to cases involving either upward or

downward departures.

Implementing Studies and Reports. The Act mandates a number of reports

and studies to ensure effective implementation of its provisions. It requires the chief

judge of each federal judicial district to report the specifics of individual sentencing

decisions handed down within the district. The reports are forwarded to the Sentencing

Commission and available to the Justice Department and the Judiciary Committees. The

Attorney General must report all cases of downward departure other than those granted

for substantial assistance as well as any determination to appeal the departure to the

Judiciary Committees. And the Sentencing Commission is to study the practice of

downward departures and make appropriate alterations in the guidelines.

Adjustments to Substantive Sex Offense Guidelines. Title IV of the Act

also modifies the guideline for specific substantive sex offenses. Section 4B1.5 of the

guidelines provides a series of minimum offense levels for conviction of a second or

subsequent sex offense. It also prescribes imposition of an additional 5 offense levels if

the defendant has engaged in a pattern of sex offenses, U.S.S.G. §4B1.5(b). It defines a

pattern as the commission two or more sex offenses committed against two or more minor

victims. The Act redefines pattern simply as the commission of two or more sex offenses

committed against a minor, eliminating the requirement of multiple victims, U.S.S.G.

§4B1.5, App.N. 4(B)(i).

In addition, the Act amends the guideline applicable to possession of material

depicting a child engaged in sexually explicit conduct adding offense level increases if the

offense involves portrayals of sadistic or masochistic conduct (add 4 offense levels) or if

the offense involves possession of multiple images (add 2 to 5 levels depending on the

number of images), U.S.S.G. 2G2.4. The Act supplies a similar treatment for the

guideline that applies to trafficking such material, except that an addition for sadistic or

masochistic conduct is unnecessary because the guideline already accounts for it, U.S.S.G.

2G2.2.

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