Attorney General William French Smith in his first appearance before the Senate Committee on the Judiciary concerning major crime legislation noted the importance of, and committed the support of the current Administration to, major sentencing reform: /5/

Of the improvements (under consideration by the Committee) * * * perhaps the most important are those related to sentencing criminal offenders. These provisions introduced a totally new and comprehensive sentencing system that is based upon a coherent philosophy. They rely upon detailed guidelines for sentencing similarly situated offenders in order to provide for a greater certainty and uniformity in sentencing.

((/5/ Criminal Code Hearings, Part XVI, at 11765.))

In the Federal system today, criminal sentencing is based largely on an outmoded rehabilitation model. The judge is supposed to set the maximum term of imprisonment and the Parole Commission is to determine when to release the prisoner because he is "rehabilitated." Yet almost everyone involved in the criminal justice system now doubts that rehabilitation can be induced reliably in a prison setting, and it is now quite certain that no one can really detect whether or when a prisoner is rehabilitated. Since the sentencing laws have not been revised to take this into account, each judge is left to apply his own notions of the purposes of sentencing. As a result, every day Federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances. One offender may receive a sentence of probation, while another -- convicted of the very same crime and possessing a comparable criminal history -- may be sentenced to a lengthy term of imprisonment. Even two such offenders who are sentenced to terms of imprisonment for similar offenses may receive widely differing prison release dates; one may be sentenced to a relatively short term and be released after serving most of the sentence, while the other may be sentenced to a relatively long term but be denied parole indefinitely. /6/

((/6/ Such disparate release dates are the result of the wide discretion granted to sentencing judges and the United States Parole Commission under current Federal law. See 18 U.S.C. 4203 (powers and duties of the Commission); 18 U.S.C. 4206 (parole determination criteria; prisoner may be released by the Commission "upon consideration of the offense and the history and characteristics of the prisoner * * * and pursuant to guidelines promulgated by the Commission * * * (The) Commission may (also) grant or deny release on parole notwithstanding (These) guidelines * * * if it determines there is good cause for so doing * * *"); 18 U.S.C. 4207 (allowing the Parole Commission to consider reports from any and all sources).))

These disparities, whether they occur at the time of the initial sentencing or at the parole stage, can be traced directly to the unfettered discretion the law confers on those judges and parole authorities responsible for imposing and implementing the sentence. This sweeping discretion flows from the lack of any statutory guidance or review procedures to which courts and parole boards might look. /7/ These problems are compounded by the fact that the sentencing judges and parole officials are constantly second-guessing ++EP++ each other, and, as a result, prisoners and the public are seldom certain about the real sentence a defendant will serve.

((/7/ Review of sentences imposed by the courts is confined to two special sentencing statutes (18 U.S.C. 3576, relating to dangerous special offenders, and 21 U.S.C. 849, relating to dangerous special drug offenders) unless the sentence is illegal. Review of decisions of the Parole Commission is generally confined to the question of whether it has abused its discretion.))

In order to alleviate these problems, the Committee set several goals that it believes any sentencing reform legislation should meet.

First, sentencing legislation should contain a comprehensive and consistent statement of the Federal law of sentencing, setting forth the purposes to be served by the sentencing system and a clear statement of the kinds and lengths of sentences available for Federal offenders.

Second, it should assure that sentences are fair both to the offender and to society, and that such fairness is reflected both in the individual case and in the pattern of sentences in all Federal criminal cases.

Third, it should assure that the offender, the Federal personnel charged with implementing the sentence, and the general public are certain about the sentence and the reasons for it.

Fourth, it should assure the availability of a full range of sentencing options from which to select the most appropriate sentence in a particular case.

Fifth, it should assure that each stage of the sentencing and corrections process, from the imposition of sentence by the judge, and as long as the offender remains within the criminal justice system, is geared toward the same goals for the offender and for society.

Unfortunately, current Federal law fails to achieve any of these goals. Each participant in the process, from the courts through the probation and parole systems, does the best it can with the legislative tools at hand, but none is able to reach these goals without substantial sentencing reform legislation.

Following is a brief description of current sentencing law and the attempts of the Federal criminal jsutice system to ameliorate the problems caused by that law. That description is followed by a summary of the sentencing reform proposals in the bill, as reported, and a discussion of how those proposals will achieve the goals set by the Committee. More detailed descriptions of current law and the sentencing provisions are contained in the section-by-section analysis.

Current law also contains several specialized sentencing statutes that are each applicable to narrow classes of offenders -- offenders between the ages of 18 and 22, /10/ offenders between 22 and 26, /11/ nonviolent offenders who are drug addicts, /12/ offenders who are "dangerous special offenders," /13/ and offenders who are "dangerous special drug offenders." /14/ Other categories of offenders that might just as logically be covered by specialized statutes are left undifferentiated.

((/10/ 18 U.S.C. 5005 et seq.))

((/11/ 18 U.S.C. 4216.))

((/12/ 18 U.S.C. 4251 et seq.))

((/13/ 18 U.S.C. 3575 et seq.))

((/14/ 21 U.S.C. 849.))

The sentencing provisions of current law were originally based on a rehabilitation model in which the sentencing judge was expected to sentence a defendant to a fairly long term of imprisonment. The defendant was eligible for release on parole after serving one-third of his term. The Parole Commission was charged with setting his release date if it concluded that he was sufficiently rehabilitated. /15/ At present, the concepts of indeterminate sentencing and parole release depend for their justification exclusively upon this model of "coercive" rehabiliation -- the theory of correction that ties prison release dates to the successful completion of certain vocational, educational, and counseling programs within the prisons.

((/15/ See 45 Cong. Rec. 6374 (1910)(remarks of Rep. Clayton).))

Recent studies suggest that this approach has failed /16/ and most sentencing judges as well as the Parole Commission agree that the rehabilitation model is not an appropriate basis for sentencing decisions. /17/ We know too little about human behavior to be able to rehabilitate individuals on a routine basis or even to determine accurately whether or when a particular prisoner has been rehabilitated. Until the present sentencing statutes are changed, however, judges and the Parole Commission are left to exercise their discretion to carry out what each believes to be the purposes of sentencing. ++EP++

((/16/ Several published analyses of correctional treatment and programs illustrate their ineffectiveness. See Robinson & Smith, The Effectiveness of Correctional Programs, 17 Crime and Delinquency 67 (1971); Martinson, What Works: Questions and Answers about Prison Reform, 1947 Pub. Int. 22; D. Lipton, R. Martinson & J. Wilks, Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies (1975). See also D. Greenburg, Much Ado about Little: The Correctional Effects of Corrections (June, 1974) (unpublished summary of effectiveness studies prepared for the Committee for the Study of Incarceration); also discussed in A. Von Hirsch, Doing Justice: The Choice of Punishments, 14-15 (1976), which concludes that "the rehabilitative disposition is plainly untenable." Id. at 18.))

((/17/ The Parole Commission does provide a small amount of advancement in the presumptive release date for "documented sustained superior program achievement over a period of 9 months or more in custody," and permits partial advancement even if there have been minor disciplinary infractions (28 C.F.R. Section 2.60 (1982)).))

2. Disparity and uncertainty in current Federal sentencing

a. Practices of the Federal judiciary

The absence of a comprehensive Federal sentencing law and of statutory guidance on how to select the appropriate sentencing option creates inevitable disparity in the sentences which courts impose on similarly situated defendants. /18/ This occurs in sentences handed down by judges in the same district and by judges from different districts and circuits in the Federal system. /19/ One judge may impose a relatively long prison term to rehabilitate or incapacitate the offender. Another judge, under similar circumstances, may sentence the defendant to a shorter prison term simply to punish him, or the judge may opt for the imposition of a term of probation in order to rehabilitate him. /20/

((/18/ A recent study indicates that Federal judges disagree considerably about the purposes of sentencing. While one-fourth of the judges thought rehabilitation was an extremely important goal of sentencing, 19 percent thought it was no more than "slightly" important; conversely, about 25 percent thought "just deserts" was a very important or extremely important purpose of sentencing, while 45 percent thought it was only slightly important or not important at all. INSLAW, Inc., and Yankelovich, Skelly, and White, Federal Sentencing: Toward a More Explicit Policy of Criminal Sanctions, III-4 (1981)(hereinafter cited as Federal Sentencing Study).))

((/19/ See id. at III-19 to III-21.))

((/20/ Id. at III-9 to III-14.))

For example, in 1974, the average Federal sentence for bank robbery was eleven years, but in the Northern District of Illinois it was only five and one-half years. Similar discrepancies in Federal sentences for a number of different offenses were found in a landmark study by the United States Attorney's Office for the Southern District of New York. /21/ Further probative evidence may be derived from another 1974 study in which fifty Federal district court judges from the Second Circuit were given twenty identical files drawn from actual cases and were asked to indicate what sentence they would impose on each defendant. /22/ The variations in the judges' proposed sentences in each case were astounding, as shown in the following chart: ++EP++

((/21/ Seymour, 1972 Sentencing Study for the Southern District of New York, 45 N.Y.S. B.J. 163, reprinted in 119 Cong. Rec. 6060 (1973). For example, "(t)he range in average sentences for forgery runs from 30 months in the Third Circuit to 82 months in the District of Columbia. For interstate transportation of stolen motor vehicles, the extremes in average sentences are 22 months in the First Circuit and 42 months in the Tenth Circuit," Id. at 167.))

((/22/ Partridge and Eldridge, The Second Circuit Sentencing Study, A Report to the Judges 1-3 (1974). Designed as a self-evaluation, the study involved 43 active judges and seven of the senior judges of the six judicial districts constituting the Second Circuit. To avoid the customary complications introduced by differences in cases, and to insure a focus upon differences in judges' sentencing behavior, the study asked these 50 judges to impose sentence on 20 different defendants charged with those Federal offenses most representative of the Circuit's workload. The judges were given the same representative presentence report prepared for each hypothetical offender. The total number of sentences -- 901 -- roughly approximated the number of sentences these judges would normally render in a 6 month period.))

In one extortion case, for example, the range of sentences varied from twenty years imprisonment and a $65,000 fine to three years imprisonment and no fine. /23/

((/23/ Partridge and Eldriges, id. at 5. Recent studies of other jurisdictions confirm the existence of widespread sentencing disparity. See, e.g., L. Wilkins, J. Kress, D. Gottfredson, J. Caepin, and A. Gelman, Sentencing Guidelines: Structuring Judicial Discretion (1978) (1976 study of Colorado and Vermont); Austin & Williams III, A Survey of Judges' Responses to Simulated Legal Cases; Research Note on Sentencing Disparity, 68 J. Crim. L.C. & P.S. 306 (1977) (study of 47 Virginia district court judges); Diamond and Zeisel, Sentencing Councils: A Study of Sentence Disparity and its Reduction, 43 U. Chi. L. Rev. 109 (1975) (Northern District of Illinois and Eastern District of New York); Comment, Texas Sentencing Practices: A Statistical Study, 45 Tex. L. Rev. 471 (1967) (Texas).))

The findings of the Second Circuit study have been reconfirmed in a study performed for the Department of Justice in which 208 active Federal judges specified the sentences they would impose in 16 hypothetical cases, 8 bank robbery cases, and 8 fraud cases. In only 3 of the 16 cases was there a unanimous agreement to impose a prison term. Even where most judges agreed that a prison term was appropriate, there was a substantial variation in the lengths of prison terms recommended. /24/ In one fraud case in which the mean prison term was 8.5 years, the longest term was life in prison. In another case the mean prison term was 1.1 years, yet the longest prison term recommended was 15 years. /25/

((/24/ Federal Sentencing Study, supra note 18 at III-16.))

((/25/ Id., Exhibit III-8.))

The study also concluded that, while 45 percent of the variance in sentences for hypothetical cases was attributable to differences in offense and offender characteristics, 21 percent was directly attributable to the fact that some judges tend to give generally tough or generally lenient sentences, /26/ and 22 percent of the variation was attributable to interactions between the "judge factor" and other factors. For example, some judges sentence more harshly for a particularly offense than other judges even though they do not sentence more harshly overall, and some judges sentence relatively more harshly than other judges if the defendant has a prior record. /27/

((/26/ Id. at III-17.))

((/27/ Id. at III-17 to III-18. For more details of the study, see Bartolomeo, Clancy, Richardson, and Berger, Sentence Decision Making: The Logic of Sentence Decisions and the Extent and Sources of Sentence Desparity (1981).))

Following is the table from the report showing the differences in decisions whether to incarcerate and the length of incarceration:

++EP++

1/ Scenarios are described in Exhibits III.6 and III.7.

2/ Life.

In addition, as indicated in the following chart, a study of the two districts in each of the 11 Federal judicial circuits that sentenced the greatest number of offenders in 1972 for a selected group of offenses shows widespread sentencing disparity:

Note -- The Federal district courts for each of the 11 circuits were chosen on the basis of the 2 districts in each circuit that sentenced the greatest number of offenders for the selected offenses.

Source: Administrative Office of the United States Courts, "Federal Offenders in United States District Courts," 1972, app. table X-4. O'Donnell, Churgin and Curtis, "Toward A Just and Effective Sentencing System: Agenda For Legislative Reform" (Praeger, 1977).

The Committee finds that this research makes clear that variation in offense and offender characteristics does not account for most of the disparity. /28/

((/28/ See Subcommittee Criminal Code Hearings, Part XIII, at 8870, 8881, 8897, 8903, 8916, 8960; Criminal Code Hearings, Part XVI, at 11752, 11786-87, 11911.))

Sentencing disparities that are not justified by differences among offenses or offenders are unfair both to offenders and to the public. A sentence that is unjustifiably high compared to sentences for similarly situated offenders is clearly unfair to the offender; a sentence ++EP++ that is unjustifiably low is just as plainly unfair to the public.

Such sentences are unfair in more subtle ways as well. Sentences that are disproportionate to the seriousness of the offense create a disrespect for the law. Sentences that are too severe create unnecessary tensions among inmates and add to disciplinary problems in the prisons. /29/

((/29/ Subcommittee Criminal Code Hearings, Part XIII, at 9095.))

b. Policies and practices of the Parole Commission

In response to the lack of consistency apparent in the prison sentences imposed by the Federal Courts, the Parole Commission, in turn, releases prisoners according to its view of the appropriate term of imprisonment. In recent years, the Parole Commission has attempted to perform its function with two goals in mind: first, it has sought to reduce unwarranted disparity in judicially imposed prison terms by utilizing parole guidelines /30/ that recommend appropriate periods of incarceration for different offenses and offender characteristics. Second, it has sought to increase certainty in prison release dates by setting a "presumptive release date" in most cases within a few months of commencement of the term of imprisonment. /31/

((/30/ 28 C.F.R. Section 2.20 (1982). "Whether wisely or not, Congress has decided that the (Parole) Commission is in the best position to determine when release is appropriate, and in doing so, to moderate the disparities in the sentencing practices of individual judges." United States v. Addonizio, 442 U.S. 178, 188-189 (1979), citing S. Cong. Rept. 94-368, 94th Cong., 1st Sess., at 19 (1976).))

((/31/ 28 C.F.R. Section 2.12 (1982). The date may be advanced only for superior program achievement (see 28 C.F.R. Section 2.60 (1982)) or for other "clearly exceptional circumstances" (28 C.F.R. Section 2.14(a)(2)(ii)). It may be retarded or rescinded for disciplinary infractions (28 C.F.R. Section 2.14(a)(2)(iii) and 2.36).))

By dividing the sentencing authority between the judge and the Parole Commission, however, current law actually promotes disparity and uncertaintly. First, the dangers of an unfettered exercise of discretion can occur at the time that an offender is released on parole as well as the initial sentencing. For this reason, any comprehensive plan for reform should (1) take into account the division of authority that currently exists between the sentencing judge and the Parole Commission, (2) consolidate, that authority, and (3) develop a system of sentencing whereby, the offender, the victim, and society all know the prison release date at the time of the initial sentencing by the court, subject to minor adjustments based on prison behavior called "good time." /32/

((/32/ See 18 U.S.C. 4161-4166.))

Second, the existence of the Parole Commission invites judicial fluctuation by encouraging judges to keep the availability of parole in mind when they sentence offenders. /33/ Sentencing judges, trying to anticipate what the Parole Commission will do, undoubtedly are tempted to sentence a defendant on the basis of when they believe the Parole Commission wil release him. /34/ In doing so, some judges ++EP++ deliberately impose sentences above the parole guidelines, leaving the Parole Commission to set the presumptive release date.

((/33/ The presentence report informs the sentencing judge as to the probable application of the parole guidelines in each case. See Division of Probation, Administrative Office of the United States Courts, The Presentence Investigation Report, pp. 6 and 16 (1978). It is probable that some judges, believing that the parole release date specified in the guidelines is reasonable, impose sentences to imprisonment that assure parole eligibility during the guidelines range applicable in a particular case, while other judges may deliberately impose sentence below the parole guideline believing that it is too harsh or set a high sentence with parole eligibility above the guideline if it is believed to be too low.))

((/34/ It is ironic that those who would retain parole on the ground that it is a valuable "safety valve" designed to shorten lengthy sentences imposed by judges who would ignore the guidelines established under this title could very well be assuring that longer sentences would be imposed by judges trying to structure sentences to overcome prospectively the anticipated reduction by the Parole Commission. In addition, if parole eligibility is retained for a substantial percentage of a prison term, the sentencing guidelines would necessarily recommend far longer prison terms than if there were no parole release system. This would virtually assure that prison terms imposed by judges would bear no more resemblance to terms actually served than they do today. About half the prisoners within the jurisdiction of the Parole Commission are released at the expiration of sentence, less good time, rather than on parole. Of the 7,077 persons who were sentenced to terms of imprisonment of over one year and who were released from prison in the fiscal year ended September 30, 1977, 3,492 were released on parole. Federal Prison System, Statistical Report Fiscal Year 1977, Table C-1, p. 175. Comparable Bureau of Prisons statistics for fiscal year 1982 indicate that of 6,968 prisoners sentenced to terms of imprisonment in excess of one year who were released that year, 3,956 were released on parole. Federal Prison System, Statistical Report Fiscal year 1982, Table C-1.))

Other judges impose sentences consistent with or below the guidelines in order to retain control over the release date. /35/

((/35/ See 18 U.S.C. 4163.))

A few examples may be helpful to clarify this and the following discussion. Suppose the parole guidelines prescribe a range of forty to fifty-two months of time to be served for a given offense. This prescription is based upon the offense and offender characteristics present in the particular case. Suppose further that the offense carries a statutory maximum prison sentence of twenty years. The judge sentences the offender to a term of three years imprisonment. By statute, the prisoner is eligible for parole after serving one-third of his sentence (one year), /36/ and may not serve more than the maximum (three years) for that conviction. /37/ The parole guidelines figure (forty to fifty-two months) never comes into play, and the Commission is powerless to make this particular sentence conform to the generally applied term prescribed by the guidelines. In such cases the Parole Commission generally will not parole the prisoner; thus, he serves the maximum sentence less good time. /38/

((/36/ 18 U.S.C. 4205(a).))

((/37/ 18 U.S.C. 4163.))

((/38/ Criminal Code Hearings, Part XIV, at 10648-10651, 10665 note 29.))

The second example follows from the first. If the offender is not sentenced to any term of imprisonment, he does not come within the jurisdiction of the Commission, and the guidelines are irrelevant.

In the third example, the judge sentences the offender to a prison term of fifteen years, and again the parole guidelines are circumvented. In this case the prisoner will not be eligible for parole until he served one-third of his sentence (five years) unless the judge specifies that the prisoner should be eligible for an earlier parole date. /39/ The five-year minimum is above the range prescribed by the guidelines. Here, the best the Commission can do to eliminate sentence disparity is to parole the prisoner as soon as he is eligible, that is, after he has served five years of his sentence.

((/39/ 18 U.S.C. 4205(b).))

These examples make it clear that, operating under a guidelines system, the Parole Commission cannot completely eliminate unwarranted sentencing disparity if the courts do not cooperate. It should be added that even if the Commission abandoned its guidelines and attempted merely to carry out the courts' intentions regarding offenders sentenced to imprisonment, the chance of success ++EP++ would be small.

At present, judges need not specify the reasons for their sentencing decisions, and usually they do not indicate the length of time they expect an offender to spend in prison. Thus, the Commission seldom has enough information upon which to base a release decision that conforms to the courts' intentions.

The problems with the present system do not end here, however. The parole guidelines themselves contribute to disparity because the offenses are grouped according to "severity." Offenses are rarely distinguished according to such characteristics as the amount of harm done by the offense, the criminal sophistication of the offender, or the importance of the offender's role in an offense committed with others. /40/ Similarly, in classifying offenders according to their criminal histories, the guidelines made few distinctions between major and minor previous offenses and give the same weight to all but very old prior offenses. /41/

((/40/ Recent amendments to the offense severity index for the parole guidelines provide more detailed distinctions in offense descriptions than previous formulations. See 47 Fed. Reg. 56336-41 (Dec. 16, 1982).))

((/41/ See items A, B, and D in the salient factor score, 28 C.F.R. Section 2.20 and the scoring instructions for those factors in 28 C.F.R. Section 2.20-07.

Additionally, the parole guidelines frequently fail in practice to achieve their goal of reducing unwarranted sentencing disparities. In a recent study by the General Accounting Office, 35 hearing examiners of the Parole Commission were asked to indicate the release date they would set for each of a sample of 30 cases. The study found substantial disparities in the release dates. In 28 of the 30 cases there was a variation of more than one year. /42/ The GAO attributed the inconsistencies to the lack of training of hearing examiners, who are not lawyers, and to weaknesses in the guidelines themselves. /43/

((/42/ Comptroller General of the United States, Federal Parole Practices: Better Management and Legislative Changes Are Needed 15-20 (Rept. No. B-133223, 1982).))

((/43/ Id. at 12-23.))

Nor can the Parole Commission, by setting a presumptive release date once an offender is within its jurisdiction, eliminate entirely the uncertainty inherent in current sentencing procedures.

As the previous examples made clear, a court-imposed term of imprisonment in excess of one year frequently has little to do with the amount of time that an offender will spend in prison. The announced term represents only the maximum length of time the offender may spend in prison if he earns no good time credits /44/ and if the Parole Commission does not set a release date that falls before the date of expiration of the sentence. /45/ ++EP++

((/44/ See 18 U.S.C. 4161 et seq.))

((/45/ See 18 U.S.C. 4163.

The Supreme Court, in United States v. Addonizio, supra note 30, held that a sentence was not subject to collateral attack under 28 U.S.C. 2255 in a case in which the United States Parole Commission did not release the defendant at the time that the sentencing judge expected. The sentencing judge indicated in his decision in the section 2255 proceeding that he intended that, if the defendant's prison behavior was "exemplary," he would be released on parole after serving one-third of a 10-year term of imprisonment. The U.S. Parole Commission, considering not the defendant's behavior in prison but the seriousness of the offense, refused to release the defendant at that time. In denying Federal court jurisdiction over the section 2255 motion, the Supreme Court said:

"The import of (the) statutory scheme is clear: the judge has no enforcible expectations with respect to the actual release of a sentenced defendant short of his statutory term. The judge may well have expectations as to when release is likely. But the actual decision, is not his to make either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, and to use collateral attack as a mechanism for ensuring that these expectations are carried out would substantially undermine the congressional decision to entrust release decisions to the Commission and not the courts. Nothing in Section 2255 supports -- let alone mandates -- such frustration of congressional intent." Id. at 190. Thus, "(w)hen parole boards exercised authority over release, judges' sentences were of secondary importance * * *". National Academy of Sciences, Panel on Sentencing Research, Research on Sentencing: The Search for Reform 57 (A. Blumstein, J. Cohen, S. Martin & M. Tonry, eds., 1983) (hereinafter cited as National Academy of Sciences Report).))

The presumptive release date set by the Commission is also subject to change, however. In a given case the Commission may either (1) tell a prisoner that he will be released at the expiration of his sentence less good time or (2) set another tentative release date. In the first case, the date of release is subject to constant adjustment by the Bureau of Prisons because of the withholding or forfeiture of all or part of the good time the prisoner has earned for compliance with institutional rules /46/ and the possible restoration of part or all of that lost good time at a later date. /47/ Alternatively, if the Commission decides to set a separate presumptive release date, it may move the date forward in exceptional cases or may delay it for disciplinary problems in prison. Finally, the Commission may adjust the release date for a rules violation that resulted in the withholding or forfeiture of good time and may delay the release date even though the Bureau of Prisons restored all good time lost for the same violation. /48/

((/46/ 18 U.S.C. 4165.))

((/47/ 18 U.S.C. 4166.))

((/48/ 28 C.F.R. Sections 2.12(d), 2.14(a)(2)(ii), 2.14(a)(2)(iii), 2.34, 2.36(a)(1), 2.60.))

c. Conclusion

These accounts of the present practices of the Federal courts and of the Parole Commission clearly indicate that sentencing in the Federal courts is characterized by unwarranted disparity and by uncertainty about the length of time offenders will serve in prison.

The lack of reasonable consistency in the sentences handed down by the courts is due in large part to the lack of a comprehensive Federal sentencing law. Federal statutes should provide clear guidance to Federal judges on how to select from among the available alternatives an appropriate sentence to impose upon the particular defendants before them. This disparity is fair neither to the offenders nor to the public.

The efforts of the Parole Commission to alleviate this disparity unfortunately contribute to a second grave defect of present law; no one is ever certain how much time a particular offender will serve if he is sentenced to prison. The present system encourages judges to sentence with the parole guidelines in mind, and it encourages the Parole Commission to release prisoners with its own purposes -- not those of the sentencing judge -- in mind.

Even in those cases where the Commission can adjust court-imposed sentences in order to bring the actual prison terms in line with those for similarly situated offenders across the country, the actual terms to be served are subject continually to the "good time" adjustments by the Bureau of Prisons and to counter-adjustments by the Parole Commission. Thus, prisoners often do not really know how long they will spend in prison until the very day they are released. The result is that the existing Federal system lacks the sureness that criminal justice must provide if it is to ++EP++ retain the confidence of American society and if it is to be an effective deterrent against crime.

3. Limited availability of sentencing options

Current law in not particularly flexible in providing the sentencing judge with a range of options from which to fashion an appropriate sentence. The result is that a term of imprisonment may be imposed in some cases in which it would not be imposed if better alternatives were available. In other cases, a judge might impose a longer term than would ordinarily be appropriate simply because there were no available alternatives that served the purposes he sought to achieve with a long sentence. For example, maximum fines in current law are generally too small to provide punishment and deterrence to major offenders. /49/ Frequently, a fine does not come close to the amount the defendant has gained by committing the offense. The statutes expressly suggest only a few possible conditions that may be placed upon a term of probation and do not provide specifically for alternatives to all or part of a prison term such as community service or brief intervals, such as evenings or weekends, in prison. Finally, current law makes no provision for notifying victims of a fraudulent offense of the conviction so that they may seek civil remedies.

((/49/ There are a few exceptions in recently enacted provisions. See, e.g., 15 U.S.C. 1, 2, and 3.))

Title II creates a grading scheme by which each offense can be ranked according to its relative seriousness. /56/ This device is used to define the maximum terms of imprisonment, /57/ the maximum fines, /58/ the maximum terms of probation /59/ and the maximum terms of supervised release /60/ for each grade of offense. The definition of maximum prison terms does not alter existing statutory maximums: the existing Federal statutes still determine the maximum terms of imprisonment. /61/ The provision is intended merely to provide a useful scheme for future Congressional classification of criminal statutes. On the other hand, the proposed maximums for fines, probation, and supervised releases will supersede existing law when the bill is enacted into law. /62/ The grading scheme in title II can be used by the Sentencing Commission when it makes recommendations concerning legislative changes needed to improve Federal sentencing practices, and the Committee strongly encourages such recommendations.

((/56/ See proposed 18 U.S.C. 3581(a).))

((/57/ Proposed 18 U.S.C. 3581(b).))

((/58/ Proposed 18 U.S.C. 3571(b).))

((/59/ Proposed 18 U.S.C. 3561(b) and 18 U.S.C. 3563(a) and (b).))

((/60/ Proposed 18 U.S.C. 3583.))

((/61/ Proposed 18 U.S.C. 3559(b)(2).))

((/62/ Proposed 18 U.S.C. 3559(b)(1). An exception is made when the maximum fine in current law is higher than that specified in title II of this bill; in that case, the current maximum would apply.))

The bill creates a sentencing guidelines system that is intended to treat all classes of offenses committed by all categories of offenders consistently. /63/ This approach will eliminate specialized sentencing statutes that cover narrow classes of offenders and will thus eliminate the problem created by an offender whose case might fall into more than one category. The sentencing guidelines will recommend to the sentencing judge an appropriate kind and range of sentence for a given category of offense committed by a given category of offender. The guidelines will be supplemented by policy statements that will address questions concerning the appropriate use of the sanctions of criminal forfeiture, order of notice to victims, and order of restitution and the use of conditions of probation and post-release supervision. The formulation of sentencing guidelines and policy statements will provide an unprecedented opportunity in the Federal system to look at sentencing patterns as a whole to assure that the sentences imposed are consistent with the purposes of sentencing. At the same time, the use of sentencing guidelines and policy statements is intended to assure that each sentence is fair compared to all other sentences.

((/63/ See proposed 28 U.S.C. 991(b) and 994(a); proposed 18 U.S.C. 3553(b).))

The sentencing guidelines system will not remove all of the judge's sentencing discretion. Instead, it will guide the judge in making his decision on the appropriate sentence. If the judge finds an aggravating or mitigating circumstance present in the case that was not adequately considered in the formulation of the guidelines ++EP++ and that should result in a sentence different from that recommended in the guidelines, the judge may sentence the defendant outside the guidelines. /64/

((/64/ Proposed 18 U.S.C. 3553(b).))

A sentence that is above the guidelines may be appealed by the defendant; /65/ a sentence below the guidelines may be appealed by the government. /66/ The case law that is developed from these appeals may, in turn, be used to further refine the guidelines.

((/65/ Proposed 18 U.S.C. 3742(a).))

((/66/ Proposed 18 U.S.C. 3742(b).))

2. Assuring fairness in sentencing

A primary goal of sentencing reform is the elimination of unwarranted sentencing disparity. /67/ The bill requires the judge, before imposing sentence, to consider the history and characteristics of the offender, the nature and circumstances of the offense, and the purposes of sentencing. /68/ He is then to determine which sentencing guidelines and policy statements apply to the case. Either he may decide that the guideline recommendation appropriately reflects the offense and offender characteristics and impose sentence according to the guideline recommendation or he may conclude that the guidelines fail to reflect adequately a pertinent aggravating or mitigating circumstances and impose sentence outside the guidelines. /69/ A sentence outside the guidelines is appealable, with the appellate court directed to determine whether the sentence is reasonable. /70/ Thus, the bill seeks to assure that most cases will result in sentences within the guideline range and that sentences outside the guidelines will be imposed only in appropriate cases. /71/

((/67/ See proposed 28 U.S.C. 991(b)(2); proposed 18 U.S.C. 3553(a)(6).))

((/68/ Proposed 18 U.S.C. 3553(a).))

((/69/ Proposed 18 U.S.C. 3553(b).))

((/70/ Proposed 18 U.S.C. 3742.))

((/71/ The United States Parole Commission currently sets prison release dates outside its guidelines in about 20 percent of the cases in its jurisdiction. United States Parole Commission, Report for October 1, 1978 to September 30, 1980, Table III at 22 (1981). It is anticipated that judges will impose sentences outside the sentencing guidelines at about the same rate or possibly at a somewhat lower rate since the sentencing guidelines should contain recommendations of appropriate sentences for more detailed combinations of offense and offender characteristics than do the parole guidelines. See also National Academy of Sciences Report, supra note 45 at 29, which concludes that, "With voluntary guidelines, studies have found no evidence of systematic judicial compliance; with changes directly mandated by statute, as in the cases of mandatory and determinate sentencing laws (such as the California system of legislated sentences), studies have found formal (but not necessarily substantive) judicial compliance. However, under Minnesota's presumptive sentencing guidelines (which were promulgated under legislation substantially similar to this bill), the presence of effective external enforcement mechanisms, in the form of appellate review of sentences and close monitoring by the Guidelines Commission, has resulted in generally high rates of substantive compliance with guidelines by judges in that State."))

The Committee does not intend that the guidelines be imposed in a mechanistic fashion. It believes that the sentencing judge has an obligation to consider all the relevant factors in a case and to impose a sentence outside the guidelines in an appropriate case. The purpose of the sentencing guidelines is to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender, not to eliminate the thoughtful imposition of individualized sentences. Indeed, the use of sentencing guidelines will actually enhance the individualization of sentences ++EP++ as compared to current law. /72/

((/72/ Recent studies indicate that sentences too often reflect the personal attitudes and practices of individual sentencing judges. Sentences also vary depending upon the availability of pertinent information regarding the offenses and offenders and upon the often inconsistent recommendations of probation officers. See National Academy of Sciences Report, supra note 45 at 44, citing Carter and Wilkins, "Some Factors in Sentencing Policy," 58 J. Crim. Law, Criminology and Police Science 503-514 (1967), and D. Townsend, Y. Avichai, and G. Peters, Technical Issue Paper on Presentence Investigation Reports (Report No. 3, Critical Issues in Adult Probation, Center for Law Enforcement and Correctional Justice, Westerville, Ohio, 1978).))

Under a sentencing guidelines system, the judge is directed to impose sentence after a comprehensive examination of the characteristics of the particular offense and the particular offender. This examination is made on the basis of a presentence report that notes the presence or absence of each relevant offense and offender characteristics. This will assure that the probation officer and the sentencing judge will be able to make informed comparisons between the case at hand and others of a similar nature.

The Parole Commission has argued that, even if a sentencing guidelines system is adopted, the Commission should be retained to set the actual release date for a person sentenced by a judge to a term of imprisonment. /73/ Under its proposal, the judge, after considering the sentencing guidelines, would determine whether to send a defendant to prison and, if so, would set the maximum prison term that could be served by the defendant. Shortly after the defendant begins his term, the Parole Commission, using its own guidelines, would set a presumptive release date subject to good behavior and could later adjust that date for noncompliance with prison rules. It bases this belief on the argument that a small collegial body will be better able than the Federal judges to achieve the goal of elimination of unwarranted sentencing disparity. The Committee strongly disagrees with the Parole Commission. The proposal is based on the same discredited assumptions as the present system and is entirely at odds with the rationale of the proposed guidelines system. /74/ Moreover, it has several practical deficiencies ++EP++ that would result in continuing some of the unfairness and uncertainty in the current system.

((/73/ Subcommittee Criminal Code Hearings, Part XIII, at 9020-28.))

((/74/ The Committee's view that parole should be abolished in the context of a completely restructured guidelines sentencing system is consistent with the general sentencing philosophy expressed by numerous commentators on the current sentencing process. See, e.g., P. O'Donnell, J. Churgin, and D. Curtis, Toward a Just and Effective Sentencing System: Agenda for Legislative Reform 13, 14, 28, 56 (New York 1977) (the study on which the sentencing provisions in S. 668 are largely based) ("* * *(O)ur decision to recommend a guideline approach for sentencing requires abolition of parole, at least as that process has been administered in the past"); Kennedy, Toward a New System of Criminal Sentencing: Law With Order, 16 Am. Cr. L. Rev. 353 (Spring 1979); Frankel, Panel on Sentencing Provisions in the Proposed Federal Code, 80 F.R.D. 151, 153 (1979) ("Let the judges judge and be accountable. The idea of a parole board or commission serving in effect to review the judges was not sound when it was more or less covert; it does not improve as an express proposition."); Newman, A Better Way to Sentence Criminals, 63 A.B.A.J. 1563, 1566 (November 1977) ("By rating cases according to offense severity and offender backgrounds only and abandoning any pretense of being able to perform the impossible task of determining when a prisoner has been 'rehabilitated,' the parole commission has demonstrated abundantly that it can now go out of business."); Morris, Toward Principled Sentencing, 37 Md. L. Rev. 276 (1977); Skrivseth, Abolishing Parole: Assuring Fairness and Certainty in Sentencing, 7 Hofstra L. Rev. 281, 313 (1979), van den Haag, Punitive Sentences, 7 Hofstra L. Rev. 123, 135 (1978); Genego, Goldberger, and Jackson, Parole Release Decision-making and the Sentencing Process, 84 Yale L.J. 897 (March 1975) ("(T)he Parole Board can make no greater contribution than can the judiciary in farily effectuating the goals of punishment or reducing the most serious sentencing disparity."); Pierce, Rehabilitation in Corrections: A Reassessment, 38 Fed. Probation 14-19 (1974); Fairbanks, Parole -- A Function of the Judiciary? 27 Okla. L. Rev. 657 (1974) ("* * * (P)arole boards do not have information reasonably related to prediction, they have no apparent predictive skills, they are not even the putative experts, the entire business of predicting recidivism even by so-called experts is so dubious that it can hardly stand as a rationale for the discretionary release aspect of parole. * * * The case for the abolishment of parole is not as radical or as difficult as might first appear. Having shown parole to be ineffective, and not likely to improve; and having also shown that in terms of what parole actually does it is duplicative. * * *"; McAnany, Merritt and Tromanhauser, Illinois Reconsiders Flat Time: An Analysis of the Impact of the Justice Model, 52 Chicago-Kent L. Rev. 640 (1976); Stanley, Prisoners Among Us: The Problem of Parole 77-79 (Washington, D.C. 1976); N. Morris, The Future of Imprisonment (Chicago, 1974).

A number of witnesses at the Committee hearings on the proposed revision of the Federal Code also expressed a sentencing philosophy consistent with the abolition of parole in the context of comprehensive sentencing reform. See, e.g., Criminal Code Hearings, Part XVI, at 11765-66 (Statement of Attorney General William French Smith); pp. 11787-88 (Statement of former Attorney General Griffin B. Bell, Chairman of the Attorney General's Task Force on Violent Crime); Subcommittee Criminal Code Hearings, Part XIII, at pp. 8595-96 (Testimony of Attorney General Griffin B. Bell); pp. 9008-09 (Statement of Ronald L. Gainer); p. 8961 (Testimony of former Judge Harold Tyler: "(I)f the (Sentencing) Commission works well there would then be no need of parole commissions as we now know them * * *"); p. 8973 (Testimony of Judge Morris Lasker: "I do believe that history is showing that parole as an institution is an idea whose time may be past,"); p. 9127 (Statement of Kay Harris: "NMPC (the National Moratorium on Prison Construction) favors in principle the abolition of parole, but believes that parole abolition should not be attempted in isolation from other major criminal justice system changes * * * (W)e believe that the parole system is fatally flawed conceptually, based as it is on prediction of future individual conduct. Parole has often served to increase, rather than decrease, arbitrary and inequitable treatment of prisoners.")

The House Judiciary Subcommittee on Criminal Justice, in the course of its consideration of a revised Federal Criminal Code in the 96th Congress, also received testimony and letters in support of parole abolition. Former Judge Harold Tyler in his prepared statement presented to the Committee on October 11, 1979, stated that the proposal to retain the Parole Commission for five years under consideration by the Subcommittee, was "extremely unwise" for several reasons: first, "it will be impossible to understand or know whether judges in fact were sentencing an offender to the amount of time they actually intended or to twice the time they intended in anticipation that the Parole Commission would grant one-half parole"; second, there "is the likelihood that there would be confusion and unfairness to sentenced offenders and to the public at large"; third, "it seems to me that continuing the Parole Commission is really unnecessary in order * * * to deal with that occasional case where, in a determinate sentencing scheme, an offender receives a sentence which turns out to be manifestly unfair or 'wrong', particularly in light of post-sentence developments" and that there are alternative methods for solving this problem. Revision of the Federal Criminal Code, Hearings before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 96th Cong., 1st Sess. 1911 (hereinafter cited as House Hearings). See also House Hearings, id. at 1832 (Testimony of Norman Carlson); letter of Harvey A. Silverglate, a member of the Executive Board of the Massachusetts Chapter of the American Civil Liberties Union, to Congressman Robert F. Drinan, Chairman, Subcommittee on Criminal Justice, House Committee on the Judiciary, dated October 4, 1979, suggesting abolition of parole; and letter from Circuit Judge Jon O. Newman, United States Court of Appeals for the Second Circuit, to Congressman Drinan, dated September 14, 1979, opposing even the temporary retention of the Parole Commission in a sentencing guidelines system and suggesting possible "safety valves" in the unusual case in which one is needed. House Hearings, id. at 4539-43.))

First, it would perpetuate the current problem that judges do not control the determination of the length of a prison term even though this function is particularly judicial in nature. /75/ The better view is that sentencing should be within the province of the judiciary. Indeed, it is arguable that the Parole Commission by basing its decision on factors already known at the time of sentencing, has already usurped a function of the judiciary. /76/

((/75/ See Subcommittee Criminal Code Hearings, Part XIII, at 9028-29 (Letter of Dorothy Parker, Commissioner of United States Parole Commission).))

((/76/ Ibid. The Committee does not, however, agree with the suggestion by Mrs. Parker that the solution to this problem is to transfer the Parole Commission to the judicial branch; while implementation of that suggestion might resolve the theoretical problem caused by the Parole Commission's current position in the executive branch, it would not solve any of the other problems discussed here.))

Second, the argument that the Parole Commission, because it is a "small collegial body," is able to render more consistent decisions than the Federal judges would be, is debatable. Initial decisions of the Parole Commission are made by at least 35 hearing examiners, not by the nine Commissioners. It seems unlikely that more than 40 people making administrative decisions would result in substantially less inconsistency than a few hundred people making judicial ++EP++ decisions after hearing arguments presented by counsel for both sides, which are subject to appellate review by eleven courts of appeals sitting in panels and, ultimately, by a single Supreme Court.

The recent GAO study of the operations of the United States Parole Commission /77/ concluded that the hearaing examiners made errors in applying the guidelines in 53 percent of the cases studied, and most of these errors were not corrected in the internal appeals process. /78/ GAO specifically found that one reason the appellate process did not result in correction of errors in application of the guidelines was a Parole Commission policy that barred a decision more adverse to the prisoner than the decision appealed, even if the early release date was the result of an erroneous application of the guidelines. /79/

((/77/ General Accounting Office, Federal Parole Practices: Better Management and Legislative Changes Are Needed, Report No. B-133223 (1982).))

((/78/ Id. at ii, 11-56. The Parole Commission has criticized the methodology of the GAO study, particularly on the basis of its use of complex cases rather than a random sample of cases before the Commission. Id. at 187-90.))

((/79/ Id. at 39, 75-76. The General Counsel of the Parole Commission has questioned the legality of a parole release decision based on an incorrect interpretation of the guidelines. Id. at 75-76.))

Third, it would draw an artificial line between imprisonment and probation, forcing the sentencing guidelines system and the judges to formulate sentencing policy that assumes that a term of imprisonment, no matter how brief, is necessarily a more stringent sentence than a term of probation with restrictive conditions and a heavy fine. Such an assumption would be a roadblock to the development of sensible comprehensive sentencing policy.

Fourth, it would continue the current law problem that actual terms of imprisonment are determined in private rather than public proceedings.

Fifth, the Parole Commission might be basing decisions on a different sentencing philosophy than is reflected in the sentencing guidelines. The Parole Commission has suggested that, at least for the first few years of sentencing guidelines, the Parole Commission should issue its own guidelines for lengths of prison terms rather than rely on guidelines promulgated by the Sentencing Commission.

Finally, under the Parole Commission's proposal the procedures for review of a sentence outside the guidelines -- for example, when both a term of imprisonment and a fine outside the guidelines are imposed -- would be virtually unworkable. Apparently, the fine level would be reviewed publicly in the courts of appeals while the term of imprisonment would be reivewed privately by the Parole Commission. It is even possible that the Parole Commission under its proposal would review and amend a sentence after a United States court of appeals had already found it to be reasonable -- a situation that the Committee finds totally unacceptable.

The Committee believes that there may be unusual cases in which an eventual reduction in the length of a term of imprisonment is justified by changed circumstances. These would include cases of severe illness, cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence, and some cases in which the sentencing guidelines for the offense of which the defender was convicted have been later ++EP++ amended to provide a shorter term of imprisonment.

The Committee believes, however, that it is unnecessary to continue the expensive /80/ and cumbersome Parole Commission to deal with the relatively small number of cases in which there may be justification for reducing a term of imprisonment. The bill, as reported, provides instead in proposed 18 U.S.C. 3583(c) for court determination, subject to consideration of Sentencing Commission standards, of the question whether there is justification for reducing a term of imprisonment in situations such as those described.

((/80/ The annual budget of the Parole Commission is about $7.8 million.))

3. Certainty in release date

Under the bill, the sentence imposed by the jduge will be the sentence actually served. A sentence that exceeds one year may be adjusted at the end of each year by 36 days for a prisoner's compliance with institutional regulations. Should a prisoner demonstrate less than satisfactory compliance with prison rules, however, he may receive a small adjustment, or no adjustment at all. /81/ Once this credit has been given by the Bureau of Prisons, it cannot be withdrawn. Nor may credit that has been denied later be granted. The prisoner, the public, and the corrections officials will be certain at all times how long the prison term will be, and of the consequences of causing institutional discipline problems.

((/81/ Proposed 18 U.S.C. 3624(b).))

The Parole Commission will have no jurisdiction over offenders sentences under the guidelines sentencing system. /82/ The Committee believes that, in a guidelines sentencing system, no useful purpose will be served by continuing the Commission. Prison sentences imposed will represent the actual time to be served and the prisoners and the public will know when offenders will be released from prison. Prisoners' morale will probably improve when the uncertainties about release dates are removed. /83/ Public respect for the law will grow when the public knows that the judicially-imposed sentence announced in a particular case represents the real sentence, rather than one subject to constant adjustment by the Parole Commission.

((/82/ Under section 225(b) of the reported bill, the Parole Commission will remain in existence for 5 years after the sentencing guidelines go into effect to set release dates for prisoners sentenced before that date. At the end of that period, the Parole Commission will set final release dates for all prisoners still in its jurisdiction. In addition, section 226 of the bill requires the General Accounting Office, four years after the sentencing guidelines go into effect, to conduct a study, based in part on a report by the Sentencing Commission on the operation of the sentencing guidelines system. Congress would then evaluate the effectiveness of the guidelines system including a determination whether the parole system should be reinstated in some form.))

((/83/ The official report on the Attica riots indicates that uncertainty in release dates was a major cause of the riots. New York Special Commission on Attica, Attica (1972), cited in von Hirsch, Doing Justice: The Choice of Punishments, at 31, n. 11. See also Subcommittee Criminal Code Hearings, Part XIII, at 8881.))

The other purposes served in current law by the parole release mechanism will also be better achieved. First, as already discussed, the sentencing guidelines system is better able than the parole system to achieve fairness and certainty in sentencing.

Second, the bill requires that the judge decide, based on factors known at the time of sentencing, whether a defendant who is sentenced to a term of imprisonment will need post-release supervision and what the conditions of that release should be. /84/ Under current ++EP++ law, a prisoner is placed on parole supervision if he is released more than 180 days before expiration of his sentence. /85/

((/84/ Proposed 18 U.S.C. 3584.))

((/85/ 18 U.S.C. 4164 and 4205.))

This does not assure that the prisoner who will need post-release supervision will receive it, nor does it prevent probation system resources from being wasted on supervisory services for releasees who do not need them.

Third, because of the increased certainty of release dates, the bill should enhance prison rehabilitation efforts because prison officials will be able to work with prisoners to develop realistic work programs and goals within a set term of imprisonment. As Professor Norval Morris of the University of Chicago Law School has illustrated, parole boards are not able to predict with any degree of certainty which prisoners are likely to be "good" release risks and which are not. /86/ Indeed, such determinations seem especially suspect when made on the basis of how a prisoner responds to prison rehabilitative programs. /87/

((/86/ See, e.g., N. Morris, The Future of Imprisonment, pp. 31-34 (1974).))

((/87/ Despite these conclusions of many in the corrections community, the Parole Commission, in determining a prisoner's release date, has recently placed increased emphasis on "superior program achievement." See 28 C.F.R. Section 2.60.))

Fourth, the bill provides better mechanisms than the parole system for dealing with institution descipline problems. A prisoner will continue to receive credit toward his term, or "good time" for satisfactory institutional behavior, /88/ but it will not be subject to constant adjustment by prison officials. Nor will an agency such as the Parole Commission be able to supersede the determination of prison officials regarding what effect disciplinary problems should have on the release date. If a prisoner is aware that his behavior will have a direct effect on his release date, he can set a personal goal for early release by demonstrating compliance with prison rules. Thus, prison discipline should improve greatly. It should be noted that prison officials now rely on a number of disciplinary measures, such as changing institutions or privileges, in addition to the current ineffective good time allowances, to effect good institutional behavior. /89/

((/88/ Proposed 18 U.S.C. 3624(b).))

((/89/ See Subcommittee Criminal Code Hearings, Part XIII, at 9212-13.))

Finally, under the bill, the Bureau of Prisons is required to assure, to the extent practicable, that the last ten percent of a prison term is spent "under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for his re-entry into the community." /90/ The Bureau of Prisons has instituted an effective program in which transition services are made available to many prisoners while they are still serving their sentences. Thus, it is unnecessary to continue the parole system to carry out this purpose. In fact, under the current parole system, fewer than half the persons released after serving terms of imprisonment of more than one year are supervised. Thus, the parole system cannot be relied on for necessary transition services.

((/90/ Proposed 18 U.S.C. 3624(c).))

The Judicial Conference of the United States, while recommending a determinate sentencing guidelines system, has proposed legislation (S. 1182) that would retain the United States Parole Commission to continue some of its functions under current law. Under the ++EP++ Judicial Conference proposal, the sentencing guidelines, in recommending a term of imprisonment, would recommend both a date for release on parole of a prisoner who substantially complies with prison rules and a maximum term of imprisonment that would be served.

The sentencing judge, after considering the sentencing guidelines, would then specify both the parole release date, assuming good institutional behavior, and the maximum term that could be served by a particular prisoner if he did not meet that requirement. A prisoner would be released on his parole eligibility date unless the Parole Commission found at a hearing held shortly before that date that the prisoner had not "substantially observed the rules of the institution * * * to which he has been confined." If such a finding were made, the Parole Commission would set a release date, pursuant to its own guidelines, at a later date within the maximum sentence. The Parole Commission would also be responsible for setting release conditions for parolees, for revoking parole if the conditions were violated, and for re-paroling a prisoner whose parole was revoked.

The Committee has given this suggestion careful consideration but has rejected it on three grounds. First, the Parole Commission is a costly and cumbersome institution; and it is unlikely that the cost or complexity of the Commission would be reduced substantially if its function of setting release dates were eliminated. It would still have to hold at least one hearing in every case in which a defendant was sentenced to a term of imprisonment of more than one year; the purpose of the hearing would simply be changed. Second, the Judicial Conference proposal would not eliminate a significant problem with the current law; that is, a prisoner who needs post-release supervision may not receive it because he has served his entire term of imprisonment, while a prisoner who does not require supervision might be placed on parole merely because part of his term remains unserved when he is released. /91/

((/91/ Under the Judicial Conference proposal, the sentencing guidelines (and a sentence imposed pursuant to them) could theoretically provide the same period for parole eligibility and for the maximum term of imprisonment, thus avoiding this problem in cases in which post-release supervision is unnecessary. However, it is unlikely that this was intended since it leaves no possibility of credit for good behavior for the category of prisoners most likely to earn it.))

Third, the Judicial Conference proposal retains vestiges of the rehabilitation theory upon which current law is exclusively based. Under the proposal, prison release remains conditional until the defendant serves his full term of imprisonment in a combination of imprisonment and parole release. Only if the offender demonstrates that he is fully "rehabilitated" by complying with the terms of release will he have completed his prison term. Under Title II as reported, a prisoner has completed his prison term when released even if he is released to serve a term of supervised release. If he commits a technical violation of his release conditions, those conditions can be made more severe. If he commits a serious violation, he can, depending on the circumstances of the case, be punished for contempt of court or be held pending trial if the violation is a new criminal offense. /92/ ++EP++

((/92/ Proposed 18 U.S.C. 3583(e)(2) or (3).))

4. Availability of sentencing options

The comprehensive sentencing provisions of the bill provide a full range of sentencing options. The Sentencing Commission in promulgating guidelines and the sentencing judge in imposing sentence may fashion a sentence that suits the characteristics of each offense and offender.

As noted earlier, the only type of sentence for which current law provides a full range of options is the term of imprisonment. This probably results in too much reliance on terms of imprisonment when other types of sentences would serve the purpose of sentencing equally well without the degree of restriction on liberty that results from imprisonment. /93/

((/93/ See, e.g., Remarks by Attorney General William French Smith, Vanderbilt University School of Law (Mar. 3, 1983); McCarthy, Breaking Out of the Prison Mentality, Wash. Post, Apr. 3, 1983, at K-9; Crime and Punishment: Smith Seeks Reform, L.A. (Herald, Mar. 9, 1983, at A-8; Jail Options Sought In Non-Violent Crime, Ky. Enquirer, Mar. 4, 1983, at A-1.))

Under the bill, maximum fines have been substantially increased from current law. /94/ This will permit the imposition of a substantial fine in lieu of part of all or a prison term in appropriate cases.

((/94/ Proposed 18 U.S.C. 3571(b).))

The bill treats probation as a form of sentence with conditions /95/ rather than as a deferral of imposition or execution of a sentence, and it requires that in felony cases it be accompanied by a fine, an order to pay restitution, or an order to engage in community service. /96/ The Committee encourages the fashioning of conditions of probation in order to made probation a useful alternative to a term of imprisonment. A full range of possible probation conditions is suggested in the bill. /97/ For example, the bill permits nights or weekends to be spent in a penal or correctional facility as a condition of probation. It continues the ability to require that the defendant reside at, or participate in a program of, a community correctional facility.

((/95/ See proposed 18 U.S.C. 3551(b), 3551(c), 3561.))

((/96/ Proposed 18 U.S.C. 3563(a)(2).))

((/97/ See proposed 18 U.S.C. 3563.))

The bill adds a new sanction that may be imposed in addition to a term of probation, imprisonment, or a fine. It permits the judge to order that a defendant convicted of an offense of fraud or other intentionally deceptive practices give reasonable notice and explanation of the conviction to the victims of the offense so that they may seek appropriate civil redress. /98/ In addition, it carries forward the newly created remedy of an order of restitution that permits the judge to order a defendant found guilty of an offense that caused bodily injury or property damage, destruction, or loss to made restitution to the victim. /99/

((/98/ Proposed 18 U.S.C. 3555.))

((/99/ Proposed 18 U.S.C. 3556.))

5. Consistency of purpose

For the first time, Federal law will assure that the Federal criminal justice system will adhere to a consistent sentencing philosophy. Further, each participant in the system will know what purpose is to be achieved by the sentence in each particular case.

As previously noted, the bill itself sets forth the four basic purposes of criminal sanctions. /100/ It requires the Sentencing Commission ++EP++ to consider these purposes in developing sentencing guidelines and policy statements. /101/

It further requires sentencing judges to consider them in imposing sentence. /102/

((/100/ Proposed 18 U.S.C. 3553(a)(2).))

((/101/ Proposed 28 U.S.C. 991(b) and 994(a) and (f).))

((/102/ Proposed 18 U.S.C. 3553(a)(2).))

The bill requires the sentencing judge to announce how the guidelines apply to each defendant /103/ and to give his reasons for the sentence imposed. /104/ The judge is also required to give the reason for imposing sentence at a particular point within the guidelines or, if the sentence is outside the guidelines, specific reasons for imposing a sentence of a different kind or length than recommended in the guidelines. /105/

((/103/ Proposed Rule 32(a)(1), F.R. Crim. P.))

((/104/ Proposed 18 U.S.C. 3553(c).))

((/105/ Ibid.))

The statement of reasons can be used by each participant in the Federal criminal justice system charged with reviewing or implementing a sentence. It will assist the appellate courts in reviewing the reasonableness of a sentence outside the guidelines, and in the determining whether a sentence within the guidelines is the result of correct or incorrect application of the guidelines. The statement of reasons can be used by probation or prison officials, working in conjunction with the defendant, in achieving the goals sought by the sentencing judge.

Finally, the abolition of the Parole Commission will eliminate its second-guessing of the judge's sentencing, and will obviate the need for the judge to anticipate how the Parole Commission may alter the sentence he imposed.

6. Miscellaneous sentencing issues

The Maine statute /117/ abolishes parole but does not create either a sentencing guidelines system or legislated sentences. South Carolina has established a sentencing commission that is in the process of developing guidelines in the context of an indeterminate sentencing system. /118/ Several States, including Maryland, Massachusetts, and New Jersey, /119/ and numerous local courts have adopted such guidelines. /120/

((/111/ Minnesota Stat. Ann. Sections 244.04, 244.05, 244.08, 244.09, 244.10 (West Supp. 1983).))

((/112/ Wash. Rev. Code Ann. Sections 9.94A.010 to 9.94A.260 (1983-1984 Supp.). (Unlike the Federal proposal and the Minnesota guidelines, the Washington guidelines are to be enacted by the legislature (see Wash. Rev. Code Ann. Section 9.94A.070 (1983-1984 Supp.)).))

((/113/ 42 Pa. Cons. Stat. Ann. Sections 2151-2155, 2155 note, 9721, 9721 note (Purdon Supp. 1982-83). Pennsylvania law provides for rejection of sentencing guidelines by the General Assembly, Id. Section 2155(b). The General Assembly adopted sentencing guidelines by statute in 1982, Id. Section 9721 note. Both the Board of Probation and Parole and the Commission on Sentencing are scheduled to be abolished December 31, 1985, Pa. Cons. Stat. Ann. Section 1795.6(b) (Purdon Supp. 1982-1983).))

((/114/ Cal. Penal Code Section 1170 (West. Supp. 1983).))

((/115/ Ill. Ann. Stat. ch. 38, Sections 1005-4-1, 1005-4-2, 1005-8-1, 1005-8-3, 1005-8-7, 1005-10-1, 1005-10-2 (Smith-Hurd 1982).))

((/116/ See Ind. Code Ann. Sections 35-50-1A-7, 35-50-2-2(b), 35-50-2-3 to 35-50-3-4 (Burns 1979 and Burns Supp. 1982).))

((/117/ Me. Rev. Stat. Ann. tit. 17-A, Section 1252 (West Supp. 1982).))

((/118/ Section 24-27-10 et seq. (S.C. Code of Laws 1976).))

((/119/ Administrative Office of the Courts, Maryland Sentencing Guidelines Manual (Rev. ed. October 1982); State of New Jersey, Administrative Office of the Courts, Sentencing Guidelines Project, Report of the Sentencing Guidelines Project to the Administrative Director of the Courts.))

((/120/ See National Academy of Sciences Report, supra note 45 at 2, 61.))

The National Academy of Sciences has recently published an extensive study and evaluation of all the research that has been done on State and local sentencing reform efforts. /121/ That study concluded that, in every respect studied, the Minnesota sentencing reform had been more successful than any other State or local reform effort in achieving its goals of reducing unwarranted sentencing disparity, increasing emphasis on punishment for violent offenders, and avoiding unintended burdens on the prison system. /122/ This finding is especially important to the consideration of this bill because of the substantial similarity between the Minnesota legislation and this Federal sentencing reform measure.

((/121/ National Academy of Sciences Report, supra note 45.))

((/122/ Id. at 27, 29-31, 192-93, 253. See also Minnesota Sentencing Guidelines Commission, Preliminary Report on the Development and Impact of the Minnesota Sentencing Guidelines (1982).))

The National Academy of Sciences study concluded that the Minnesota sentencing guidelines system was more successful in changing sentencing behavior to reduce unwarranted sentencing disparities for three reasons. First, the sentencing guidelines were required by legislation rather than adopted voluntarily by the courts. Second, the guidelines prescribed what sentencing behavior ought to be rather than merely describing past sentencing practices. And third, the Minnesota statute included a mechanism -- availability of appellate review of all sentences outside the guidelines -- to assure judicial compliance with the guidelines. The study also found that Minnesota was able to create a model of its criminal sentencing system that permitted it to test the impact of any given set of sentencing guidelines on its prison system, thus enabling it to fashion guidelines that avoided any unintended impact on the prison system. ++EP++

Non-government members would be paid at the daily rate for GS-18 Federal employees. The proposed legislation contains no language concerning the staff of the Committee, but the supporting materials indicate that the staff would be provided by the Federal Judicial Center and the Administrative Office of the United States Courts.

The Committee has given careful consideration to these recommendations of the Judicial Conference but has concluded that the provisions for a Sentencing Commission that are contained in S. 1762 are preferable for a number of reasons.

First, the reported bill requires all three branches of government, rather than only the judicial branch, to participate in the selection of members of the Sentencing Commission. This permits legislative branch participation in the selection of members of the body to which Congress will be delegating some of its authority to set sentencing policy. Presidential appointment of the members assures high visibility of the Commission, which the Committee thinks is important to the Commission's role in guiding this extensive change in Federal sentencing policy. Finally, the bill does assure the judiciary a role in the selection of the members and does place the Commission in the judicial branch.

Second, the Judicial Conference bill would preclude membership on the guidelines drafting agency of former or senior Federal judges and of non-Federal judges. Since several judges in these categories have been among the most articulate spokesmen for sentencing reform, the Committee thinks it is undesirable to preclude them from consideration.

Third, the Committee thinks that the guidelines drafting agency should have full-time members at least until the initial guidelines are in place during its first few years. While the first set of guidelines is being drafted and implemented, the Commission members will be very busy studying current sentencing practices, determining the extent to which these practices should be changed or followed, and determining whether they need fine-tuning after they are implemented. In addition, because of the importance of the work of the Commission, that work should not be subordinated to other work of the members of the Commission.

Finally, the Committee strongly believes that the Sentencing Commission should have its own staff. Of course, that staff should coordinate with and draw on the expertise of the staffs of the Federal Judicial Center and the Administrative Office of the United States Courts, and the bill requires this coordination. /127/ These staffs have highly competent personnel who have engaged in sentencing research, published sentencing data, and begun extensive data collection for assistance in implementing sentencing guidelines. It would be a mistake for the Sentencing Commission to fail to draw on these resources. However, the staffs of the Federal Judicial Center and the Administrative Office of the United States Courts have numerous other responsibilities; the Committee believes that it is important that there be a staff assigned only to sentencing reform responsibilities without conflicting demands on their time.

((/127/ Proposed 28 U.S.C. 995(b).)) ++EP++

Nor does current law adduce the types of sentences that may be imposed on a particular type of defendant. The present statutes contain only general provisions for suspending the imposition or execution of most sentences and for placing defendants on probation rather than imposing or executing their sentences. /130/

((/130/ 18 U.S.C. 3651.))

Finally, current Federal law contains no general statement of the need for a sentence to carry out a particular purpose. It does, however, contain several very specialized sentencing statutes that apply only to certain categories of offenders -- youth offenders, /131/ young adult offenders, /132/ certain drug users and addicts, /133/ dangerous special offenders, /134/ and dangerous special drug offenders /135/ -- and that tie their provisions to congressional statements that the purpose of the sentence is treatment, /136/ treatment and supervision, /137/ or incapacitation. /138/

((/131/ Federal Youth Corrections Act, chapter 402 of title 18, United States Code.))

((/132/ 18 U.S.C. 4216.))

((/133/ 18 U.S.C. 4251 et seq.))

((/134/ 18 U.S.C. 3575 et seq.))

((/135/ 21 U.S.C. 849.))

((/136/ E.g., 18 U.S.C. 4216 (young adult offenders) and 4253 (certain drug users and addicts).))

((/137/ 18 U.S.C. 5010(b) and (c).))

((/138/ See P.L. 91-452, 84 Stat. 922-23 (Organized Crime Control Act) (Oct. 15, 1970); 18 U.S.C. 3775-78; S. Rept. No. 91-617 at 83 (1969); see also 21 U.S.C. 849(f).))

3. Provisions of the bill, as reported

Subsection (a) provides that a defendant found guilty of any Federal offense shall be sentenced in accordance with the provisions of the chapter "so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case." The paragraphs referred to set forth the basic purposes of sentencing -- deterrence, /139/ incapacitation, just punishment, and rehabilitation. This part of section 3551 is designed to focus the sentencing process upon the objectives to be achieved by the Federal criminal justice system and to encourage the employment of sentencing options, such as probation, fines, imprisonment, or combinations thereof, in a fashion tailored to achieve these multiple objectives.

((/139/ The subject of general deterrence as a basis for imprisonment was discussed in United States v. Foss, 501 F.2d 522 (1st Cir. 1974).))

While the bill, as reported, contains a congressional statement of four purposes of sentencing, the Committee has not favored one purpose of sentencing over another except where the sentence involves a term of imprisonment. /140/ While some of those who have commented on the bill prefer that one purpose or another be favored over the others or, indeed, that some of the listed purposes ++EP++ be deleted from the bill altogether, /141/ the Committee believes that each of the four stated purposes should be considered in imposing sentence in a particular case.

((/140/ Section 3582(a) provides, however, in light of current knowledge that in determining whether to impose a sentence of imprisonment and in determining the length of a term of imprisonment, the sentencing judge should recognize that "imprisonment is not an appropriate means of promoting correction and rehabilitation." Proposed section 994(k) of title 28, as enacted by section 207(a) of the bill, provides that the sentencing guidelines should reflect the "inappropriateness" of using rehabilitation or availability of corrections programs as the basis for imposing a term of imprisonment.))

The Committee also recognizes that one purpose may have more bearing on the imposition of sentence in a particular case than another purpose has. For example, the purpose of rehabilitation may play an important role in sentencing an offender to a term of probation with the condition that he participate in a particular course of study, while the purposes of just punishment and incapacitation may be important considerations in sentencing a repeated or violent offender to a relatively long term of imprisonment.

((/141/ See, e.g., Crime Control Act Hearings (testimony on May 23, 1983); Subcommittee Criminal Code Hearings, Part XIII, at 8582, 8590, 8874, 8883; Criminal Code Hearings, Part XVI, at 11957 and 11962.))

Subsection (b) of section 3551 specifies that an individual offender must either be placed on probation, fined, or imprisoned as provided in the subchapters governing the imposition of such sentences. It requires the imposition of at least one of such sentences. /142/ It further states that a fine or any of the sanctions authorized by section 3554, 3555, or 3556 may be imposed in addition to any other sentence.

((/142/ The National Commission's recommendation that there be an alternative sentence of "unconditional discharge" (Final Report Sections 3301, 3105) has not been adopted by the Committee. It seems to the Committee that it is both illogical and unwise to convict a defendant of a criminal offense without imposing any sanction for that misconduct. In a compelling case, a similar result can be achieved by imposing a sentence to a term of probation without supervision. See sections 2101(b) and 2103.))

Subsection (b) treats a term of probation as a type sentence, rather than as an alternative to imposition or execution of a sentence as in current law. /143/ Subsection (b) also eliminates the split sentence in which a term of imprisonment is followed by a term of probation. /144/

((/143/ 18 U.S.C. 3651. See discussion of subchapter B of this chapter.))

((/144/ But see proposed 18 U.S.C. 3563(b)(11) and 3583.))

Subsection (c) requires that an organization that is convicted of a Federal offense be sentenced to a term of probation /145/ or to pay a fine, or both. At least one of such sentences must be imposed. In addition, an organization may, in an appropriate case, be made subject to an order of criminal forfeiture, an order of notice to victims, or an order of restitution.

((/145/ A corporation may be placed on probation under current law. See, e.g., United States v. Atlantic Richfield Co., 465 F.2d 58 (7th Cir. 1972); United States v. J.C. Ehrlich Co., Inc. 372 F. Supp. 768 (D. Md. 1974).))

S. 1, as introduced in the 93rd Congress, provided, as an equivalent to a term of imprisonment for an individual offender, that an organization could be barred from its "right to affect interstate or foreign commerce" for a period up to the maximum length of time that an individual convicted of an offense of the same seriousness could be sentenced to prison. /146/ Because the Committee was concerned that such a provision might too readily be used in an inappropriate case, this provision was deleted in the reported version of S. 1437 in the 95th Congress. /147/ Instead, S. 1437 took the approach that, in an appropriate case, an organization could be barred, as a condition of probation, from engaging in a particular business or could be ordered to engage in such a business only under stated circumstances. /148/ ++EP++

((/146/ Section 1-4A1(c)(1).))

((/147/ See S. Rept. No. 95-605, at 887 (1977).))

Such a condition of probation would, of course, apply only for the duration of the term of probation.

((/148/ See S. 1437, 95th Cong., 1st Sess., proposed 18 U.S.C. 2103(b)(6).))

Business groups, however, continued to express concern that the probation condition prohibiting an organization from engaging in a particular business might encourage misapplication to a business that had committed a regulatory offense but that was otherwise a legitimate business. While the intent of the Committee had been that the condition barring the conducting of a particular business shall be used only for an organization that conducted business in a flagrantly illegal manner, the Committee understands the concerns of business that the condition might encourage misapplication to the economic detriment of a legitimate enterprise. The Committee also believes that the situation in which an organization operates in a totally illegal manner is relatively unusual, occurring most frequently in cases where a business exists only as a front for those individuals who use it for their own fraudulent purposes. Accordingly, this condition of probation has been further modified by the Committee. The bill now provides that the condition prohibiting a defendant from engaging in a particular business shall apply only to an individual offender. In the rare case in which an organization operates in a generally illegal manner, the sentencing judge can rely on section 3563(b)(20), the general authority to set appropriate conditions of probation for the organization, and under section 3563(b)(6) can also bar an individual offender, such an an officer or even sole proprietor of a fraudulent business, from engaging in a particular business.

The Committee believes that section 3551 provides the basis for achieving considerable flexibility in the formulation of an appropriate sentence for each particular case. The combination of this section, the more detailed description of sentences that appears in the following subchapters, the purposes of sentencing set forth in section 3553(a)(2), and the provisions for sentencing guidance to the judges set forth in section 3553 of this title and in proposed chapter 58 ot title 28, /149/ should permit enough flexibility to individualize sentences according to the characteristics of the offense and the offender, while at the same time resulting in the imposition of sentences that treat offenders consistently and fairly.

((/149/ See section 207 of the reported bill.))

2. Present Federal law

The basic provisions dealing with presentence reports are currently found in Rule 32(c) of the Federal Rules of Criminal Procedure. Subdivision (c)(1) of Rule 32 requires that a presentence report be made unless (1) the defendant, with the permission of the court, waives it, or (2) the court finds that the record contains sufficient information and explains this finding on the record. The probation service is given wide discretion in determining the information to be included in the report. /150/ The rule specifically mentions the prior criminal record of the defendant, the circumstances of the offense and those affecting the defendant's behavior, and information concerning restitution needs. /151/

((/150/ United States v. Tucker, 404 U.S. 443 (1972).))

((/151/ Fed. R. Crim. P. 32(c)(2), as amended by section 3 of the Victim and Witness Protection Act of 1982, 96 Stat. 1248, 1249. See S. Rept. No. 97-532 at 11-14 (1982).))

The form used for th presentence reports is recommended by the Probation Division of the Administrative Office of the United States Courts. /152/ Since July 1, 1978, as a result of those recommendations, Federal judges have received information in the presentence report regarding the parole guideline that the probation officer believes the Parole Commission will apply to the defendant if he is sentenced to a term of imprisonment, /153/ and information concerning sentencing practices for the offense. This information shows the types and ranges of sentences imposed nationwide and in the judge's district for the type of offense (such as drug offenses) and shows the average number of months of imprisonment or probation those offenders received. The information does not include offense or offender characteristics, but the Administrative Office of the United States Courts is expanding its data collection in order to provide more detailed information. The judges also have available to them and Sentences Imposed Chart which shows all the sentences imposed in Federal court under each provision of Federal criminal law.

((/152/ The Presentence Investigation Report, Division of Probation, Administrative Office of the United States Courts (1976).))

((/153/ The determination of the applicable guideline made by the probation officer is, of course, not binding on the Parole Commission, which can, and frequently does, determine that a different guideline applies.))

18 U.S.C. 4205(c) provides that the district court may commit a convicted offender to the care of the Bureau of Prisons for a more detailed study and analysis. The commitment is deemed to be for the maximum term of imprisonment prescribed by law. The results of the study must be reported to the court within three months, unless the court grants additional time, not to exceed three months, for further study. The court is then required to place the defendant on probation, affirm the maximum sentence already imposed, or reduce the sentence. Under 18 U.S.C. 4205(d), the report may include information "regarding the prisoner's previous delinquency or criminal experience, pertinent circumstances of his social background, his capabilities, his mental and physical health, and such other factors as may be pertinent." The provision does not prescribe who should conduct a mental health examination. ++EP++

3. Provisions of the bill, as reported

Section 3552 amends current law to assure that presentence reports contain the information necessary to make an appropriate sentencing decision in the new sentencing guidelines system. Under subsection (a), presentence reports are required to be prepared by probation officers pursuant to the provisions of Rule 32. Rule 32(c) is amended by the bill to require the preparation of a presentence report unless the judge finds that he has sufficient information "to enable the meaningful exercise of sentencing authority pursuant to 18 U.S.C. 3553". The defendant would not be able to waive the presentence report, as he can under current law, since it is important that the sentencing judge assure himself that he has sufficient information from which to determine the applicable sentencing guideline.

Pursuant to the recommendations of the Judicial Conference Committee on the Administration of the Probation System, /154/ the Committee deleted from proposed 18 U.S.C. 2002 in S. 1437 as introduced in the 95th Congress, a predecessor to proposed 18 U.S.C. 3552 in the reported bill, language that would have required conviction of a defendant before the presentence investigation could be conducted. Rule 32 of the Federal Rules of Criminal Procedure was amended in 1974 to authorize the making of a presentence investigation prior to conviction, provided only that the report's contents may not be disclosed to anyone until conviction, except that a judge may inspect the presentence report with the written consent of the defendant. This section is intended to continue present law in this regard.

((/154/ Subcommittee Criminal Code Hearings, Part XIII, at 8940.))

In its testimony in the 97th Congress, the Judicial Conference expressed concern that the provisions of subsection (a) as introduced could be construed to require that the probation officer who prepares the presentence investigation and report must be an officer of the particular court sentencing the defendant. /155/ In accordance with a suggestion by the Conference, subsection (a) has been amended by the Committee to make clear that any probation officer may make the presentence investigation and report. This assures that, for example, if a defendant has lived in more than one district in which the investigation should be conducted, it is unnecessary for a probation officer of the sentencing court to travel to a distant district to complete the investigation; he can instead call on a probation officer of the distant district to conduct all or part of the investigation.

((/155/ Criminal Code Hearings, Part XVI, at 11021.))

To assist the court in determining into what guideline category a case fits, and whether special mitigating or aggravating factors warrant the imposition of a sentence outside that guideline, the existing provisions of Rule 32(c)(2)(A) and (B) have been incorporated in subdivision (c)(2)(A) of the Rule and are amended by section 205(a)(5) of the bill, as reported, to refer generally to "the history and characteristics of the defendant" in conformity with the requirement of section 3553 that the judge consider these matters in ++EP++ imposing sentence.

The Rule has been further amended to require that there be included in a presentence report:

the classification of the offense and of the defendant under the categories established by the Sentencing Commission pursuant to section 994(a) of title 28, that the probation officer believes to be applicable to the defendant's case; the kinds of sentence and the sentencing range suggested for such a category of offense committed by such a category of defendant as set forth in the guidelines issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1); and an explanation by the probation officer of any factors that may indicate that a sentence of a different kind or of a different length than one within the applicable guideline would be more appropriate under all the circumstances (as well as) any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2). * * *

The provisions of existing Rule 32(c)(2)(C) and (D) are carried forward unchanged as Rule 32(c)(D) and (E).

Subsection (b) of section 3552 partially incorporates and revises the provisions of 18 U.S.C. 4205(c). The bill provides that if the court desires more information about a convicted defendant, either before or after receiving the presentence report and any report concerning the defendant's mental condition, it may order a study of the defendant. The study shall be conducted in the local community by qualified consultants unless the sentencing judge finds that there is a compelling reason for the study to be done by the Bureau of Prisons or there are no adequate professional resources locally available to perform the study.

The provision that presentence studies be conducted locally where possible was added to maximize savings of time and money by reducing the need to transport Federal prisoners to distant Federal installations within the system and to avoid the practice of giving certain defendants a "taste of jail" under the pretense of sending them to a prison facility for the purpose of a pre-sentence examination. The bill amends current law by reducing the maximum period for the study from six months to 120 days (60 days plus a maximum 60-day extension) in order to advance the time for final sentencing while still allowing an adequate period for study. The Committee has amended the bill to specifically require that the court order for a study specify the information sought by the court. This will assure that those preparing the report will focus their attention on the issues of most interest to the court. The requirement is also consistent with the shortened period for preparation of the report. The preparers of the report are required to conduct a complete study of matters specified by the court and of any other matters they believe are pertinent to the factors that the judge must consider pursuant to section 3553(a) before imposing sentence. Before expiration of the study period or any extension, the study must be reported to the court. The report may contain any information that the Bureau believes to be pertinent to the sentencing decision. The report is required to include the Bureau's recommendations as to the sentencing guidelines and policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. ++EP++ 994(a) that the preparers believe to be applicable to the defendant's case.

Under current law, /156/ if a defendant is committed to the custody of the Bureau of Prisons for study prior to sentencing, he is deemed to have been sentenced to the maximum term of imprisonment for his offense. After the study, the judge either affirms that sentence, reduces it, or places the defendant on probation. Under subsection (b), the temporary sentence is expressly labelled for administrative purposes as a provisional sentence, and when the study is completed, the judge will impose a final sentence /157/ under the various sentencing alternatives and procedures available under the chapter. Thus, the judge will be making the sentencing decision after all the necessary information has been obtained rather than being required to adjust a sentence that has already been set at the maximum level.

((/156/ 18 U.S.C. 4205(c).))

((/157/ See proposed 18 U.S.C. 3562(b), 3573(c), and 3582(b) concerning degree of finality.))

Earlier versions of this provision required the Bureau of Prisons to return the defendant to court following the presentence study. The current bill places this responsibility with the United States Marshals, since no change in this current practice was intended.

Subsection (c) adds a new provision to the law that specifically permits the court to order a presentence examination by a psychiatric examiner concerning the current mental condition of the defendant. The examination would be conducted by a licensed or certified psychiatrist or clinical psychologist designated by the court. The court would have the authority to designate more than one examiner if it found this to be appropriate. The court would be provided with a written report that included the defendant's history and present symptoms, a description of the psychiatric, psychological, and medical tests used and their results, the examiner's findings and prognosis, and any recommendation the examiner may have on how the defendant's mental health should affect his sentence. The examination would be conducted on an outpatient basis unless the defendant was incarcerated pending sentencing, and the judge could request the examination without a motion by prosecution or defense. The judge could order an examination under this section if he thought the defendant's mental condition might affect the sentencing decision. For example, a judge might believe that a convicted defendant's emotional problems should be considered in fashioning an appropriate sentence, and wish to seek the advice of a psychiatric examiner as to whether it would be more appropriate to deal with them in a prison setting or on an outpatient basis following a brief prison term.

A new subsection (d) was added by the Committee in the 96th Congress /158/ and amended in this Congress to require that the judge assure that the reports prepared pursuant to this section are disclosed to the defendant, his counsel, and the attorney for the government at least 10 days prior to the date set for sentencing. The 10 day minimum disclosure period may be waived by the defendant. ++EP++

((/158/ See S. 1722, 96th Cong., 1st Sess., Section 101, proposed 18 U.S.C. 2002(d), as reported.))

The 10 day minimum for disclosure of the presentence report was added by Senator Kennedy in response to concerns raised by the defense bar that the practice concerning availability of presentence reports varies significantly from district to district, and even within districts. Under a sentencing guidelines system, the presentence report is a critical factor in sentencing. It is extremely important that the report be accurate and complete. Disclosure to both the government and defense counsel well in advance of the hearing will provide an opportunity to correct any deficiencies in the report before the sentencing hearing.

The disclosure is to be made pursuant to the provisions of Rule 32 of the Federal Rules of Criminal Procedure. Thus, disclosure may be in the form of an oral or written summary by the judge of portions of these reports if the judge finds pursuant to Rule 32(c)(3) that the report contains "diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons." The Committee believes that timely reports to the parties of the information on which the judge will base his sentencing decision are important to assure that counsel are prepared to address hearing questions relating to the appropriate application of the sentencing guidelines to the defendant. Section 205(a)(6) of the bill amends Rule 32(c)(3)(A) to require disclosure of the information required in the presentence report under Rule 32(c)(2) but to preclude disclosure of the actual sentence recommendation of the probation officer preparing the report.

The provision of section 3552 thus will provide a court with the resources necessary to acquire adequate information about a convicted offender, including recommendations from the probation system and, if the judge believes it would be helpful, from the Bureau of Prisons or a psychiatric examiner, in order to assure a sound basis in fact for the sentencing decision. The section also assures that the defendant and the government have sufficient information concerning the basis for a sentencing decision to enable them to prepare for the sentencing hearing.

This defect is aggravated by the fact that the sentencing judge is not required to state his reasons for imposing a particular sentence. /160/ Each judge is left to formulate his own ideas about the factors to be considered in imposing sentence and the effect that each factor should have on the sentence imposed. The result is unwarranted disparities among sentences imposed by different judges. /161/

((/159/ As discussed in connection with section 3551, a number of sentencing statutes applicable to specialized categories of offenders offer limited legislative guidance as to the purposes of a sentence under the specialized statute.))

((/160/ See M. Frankel, Criminal Sentences, Law Without Order, 39-49 (1972).))

((/161/ Federal Sentencing Study, supra note 18 at III-1 to III-9 (1981); A. Partridge and W. Eldridge, The Second Circuit Sentencing Study: A Report to the Judges (1974), excerpts in Subcommittee Criminal Code Hearings, Part XI, at 8101.))

3. Provisions of the bill, as reported

Subsection (a) sets out the factors a judge is required to consider in selecting the sentence to be imposed in a particular case. This applies to both the appropriate type of sentence (e.g., fine, probation, imprisonment, or a combination thereof) and to the severity of the sentence.

Subsection (a)(1) directs the judge to consider the "nature and circumstances of the offense and the history and characteristics of the defendant." Under this provision, the judge must consider such things as the amount of harm done by the offense, whether a weapon was carried or used, whether the defendant was a lone participant in the offense or participated with others in a major or minor way, and whether there were any particular aggravating or mitigating circumstances surrounding the offense. With respect to the history and characterisitcs of the defendant, the judge must consider such matters as the criminal history of the defendant, as well as the nature and effect of any previous criminal sanctions. All of these considerations and others that the judge believed to be appropriate would assist him in assessing how the sentencing guidelines and policy statements should apply to the defendant. They would also help the judge to determine whether there were circumstances or factors that were not taken into account in the sentencing guidelines and that call for the imposition of a sentence outside the applicable guideline.

Subsection (a)(2) requires the judge to consider the four purposes of sentencing before imposing a particular sentence.

The first purpose listed is the need for the sentence "to reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense." /162/ This purpose -- essentially the "just deserts" concept -- should be reflected clearly in all sentences; it is another way of saying that the sentence should reflect the gravity of the defendant's conduct. From the public's ++EP++ standpoint, the sentence should be of a type and length that will adequately reflect, among other things, the harm done or threatened by the offense, and the public interest in preventing a recurrence of the offense.

((/162/ It has been suggested that one aspect of this purpose of sentencing, "just deserts," should be the sole purpose of sentencing. See Testimony of Andrew von Hirsch, Subcommittee Criminal Code Hearings, Part XIII, at 8977-78 and 8982-83; von Hirsch, Doing Justice: The Choice of Punishments (1976). While the Committee obviously believes that a sentence should be "just"; and that the punitive purpose is important, it also believes that it is consistent with that purpose to examine the other purposes of sentencing set forth in section 3553(a)(2) in determining the type and length of sentence to be imposed in a particular case. Rehabilitative considerations may call for a sentence to probation with appropriate conditions where a sentence to a term of imprisonment in other circumstances might be "just"; incapacitation for an extended period of an offender with a serious criminal history might be appropriate where such a long term would not be "just" if the offender's criminal record were not considered.))

From the defendant's standpoint the sentence should not be unreasonably harsh under all the circumstances of the case and should not differ substantially from the sentence given to another similarly situated defendant convicted of a similar offense under similar circumstances. /163/

((/163/ See proposed section 994(b)(1)(B) of title 28, United States Code, as added by section 207(a) of the bill, as reported.))

The second purpose of sentencing is to deter others from committing the offense. This is particularly important in the area of white collar crime. Major white collar criminals often are sentenced to small fines and little or no imprisonment. Unfortunately, this creates the impression that certain offenses are punishable only by a small fine that can be written off as a cost of doing business.

The third purpose is to protect the public from further crimes of the defendant. This is particularly important for those offenders whose criminal histories show repeated serious violations of the law.

The fourth purpose is to provide rehabilitation. During the hearings concerning the revision of the Federal Criminal Code, arguments were advanced that rehabilitation should be eliminated completely as a purpose of sentencing. The Committee has rejected this view. Instead, the Committee has retained rehabilitation and corrections as an appropriate purpose of a sentence, /164/ while recognizing, in light of current knowledge, that "imprisonment is not an appropriate means of promoting correction and rehabilitation". /165/ It has also required that the Sentencing Commission "insure that the (sentencing) guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment." /166/

((/164/ Proposed 18 U.S.C. 3553(a)(2)(D).))

((/165/ Proposed 18 U.S.C. 3582(a).))

((/166/ Proposed 28 U.S.C. 994(k), as added by section 207(a) of the reported bill. It is understood, of course, that if the Commission finds that the primary purpose of sentencing in a particular kind of case should be deterrence or incapacitation, and that a secondary purpose should be rehabilitation, the recommended guideline sentence should be imprisonment if that is determined to be the best means of assuring such deterrence or incapacitation, notwithstanding the fact that such a sentence would not be the best means of providing rehabilitation. A balancing of competing interests is necessary.))

Rehabilitation is a particularly important consideration in formulating conditions for persons placed on probation. Their participation in such programs as education or vocational training, or in treatment programs such as those for persons with emotional problems or drug or alcohol problems, might be made conditions of probation for rehabilitative purposes.

The Committee does not suggest that efforts to rehabilitate prisoners should be abandoned. Programs within the prison setting should be available and encouraged to enhance the possibility of rehabilitation. /167/ Also, as noted previously, the purpose of rehabilitation ++EP++ is still important in determining whether a sanction other than a term of imprisonment is appropriate in a particular case.

((/167/ Crime Control Act Hearings (statement of the Department of Justice, p. 24); N. Carlson, Prisons: A Scarce Resource, 2 (April 15, 1983).))

In setting out the four purposes of sentencing, the Committee has deliberately not shown a preference for one purpose of sentencing over another in the belief that different purposes may play greater or lesser roles in sentencing for different types of offenses committed by different types of defendants. /168/ The Committee recognizes that a particular purpose of sentencing may play no role in a particular case. The intent of subsection (a)(2) is to recognize the four purposes that sentencing in general is designed to achieve, and to require that the judge consider what impact, if any, each particular purpose should have on the sentence in each case.

((/168/ See discussion of proposed 18 U.S.C. 3551(a).))

Subsection (a)(3) requires the judge to consider all sentencing possibilities. The Committee added this provision to the sentencing provisions in the Criminal Code in the 95th Congress. The provision was added in response to two concerns: (1) prison sentences are imposed in cases where equally effective sentences involving less restraint on liberty would serve the purposes of sentencing, /169/ and (2) some major offenders, particularly white collar offenders and serious violent crime offenders, frequently do not receive sentences that reflect the seriousness of their offenses. In the former case, for example, it might be possible to fashion a sentence that requires a high fine and weekends in prison for several months instead of a longer period of incarceration. In the case of a major white collar offense, the judge might impose a sentence to a term of imprisonment and a fine proportionate to the gain to the offender instead of simply a low fine that amounted only to a cost of doing business. In the case of a serious violent offense, the judge might impose a higher prison term than is served today in order to punish and incapacitate the criminal.

((/169/ See W. Smith, Remards at the Vanderbilt Univ. School of Law 10-11 (Mar. 3, 1983); N. Carlson, supra note 167 at 8.))

Subsections (a)(4) and (a)(5) require that the sentencing judge consider the kinds of sentence and the sentencing range applicable to the category of offense committed by the category of offender under the sentencing guidelines issued pursuant to 28 U.S.C. 994(a) and under any applicable policy statement issued by the Sentencing Commission.

The guidelines and policy statements to be applied are those in effect at the time of sentencing. Use of guidelines and policy statements since revised would only create significant administrative difficulties. Moreover, it would be inconsistent with the philosophy embodied in this legislation, that the Sentencing Commission can and should continually revise its guidelines and policies to assure that they are the most sophisticated statements available and will most appropriately carry out the purposes of sentencing. 18 U.S.C. 991(b)(1)(C) and 995(a) contain specific statutory direction and authority for such continual refinement. To impose a sentence under outmoded guidelines would foster irrationality in sentencing and would be contrary to the goal of consistency in sentencing. /170/ The practice of the Parole Commission has been to use the guidelines ++EP++ currently in effect, and this practice has generally withstood challenges that it violated the prohibition against ex post facto laws in Article I, Section 9 of the Constitution. /171/

((/170/ See the discussion of 18 U.S.C. 991(b)(1)(B).))

The Committee believes that the reasons given for upholding the Parole Commission practice are equally applicable to the sentencing guidelines: the statutory maximum sentence applicable for an offense is unchanged by an alteration in the guidelines. Instead, the guidelines are designed to structure the exercise of discretion in making decisions, primarily to accommodate increased knowledge as to how differences among offenses or offenders whould affect sentences. The guidelines do not eliminate the discretion to set a release date outside the guidelines if there is a valid reason for doing so.

((/171/ Portley v. Grossman, 44 U.S. 1311 (Rehnquist, Circuit Justice, 1980); Warren v. United States Parole Commission, 659 F.2d 183, 193-97 (D.C. Cir. 1981), cert. denied, 445 U.S. 950; Zeidman v. United States Parole Commission, 593 F.2d 806 (7th Cir. 1979); Rifai v. United States Parole Commission, 586 F.2d 695 (9th Cir. 1978); Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977); Kreis v. Seigler (No. 75-1543 M.D. Penn., Mar. 31. 1976). But see, e.g., Geraghty v. United States Parole Commission, 579 F.2d 238 (3d Cir. 1978), reversed and remanded on other grounds, 445 U.S. 388, and United States v. Tully, 521 F. Supp. 331 (D. N.J. 1981), in which concern is expressed that, if the amended parole guidelines are applied mechanically rather than on an individualized basis, there would be an ex post facto problem.))

Subsection (a)(6) requires the judge to consider "the need to avoid unwarranted disparities among defendants with similar records who have been found guilty of similar conduct". A similar provision, proposed 28 U.S.C. 991(b)(1)(B), is directed to the Sentencing Commission. These provisions underline the major premise of the sentencing guidelines -- the need to avoid unwarranted sentencing disparity. The subsection required judges to avoid unwarranted disparity in applying the guidelines and particularly in deciding when it is desirable to sentence outside the guidelines.

The Committee considered and rejected a proposal by the American Bar Association to include a so-called "lockstep" procedure which would mandate consideration by the sentencing judge in ordered fashion of a series of several sentencing alternatives prior to sentencing an individual.

In the Committee's view, the "lockstep" procedure is superfluous and incompatible with a sentencing guidelines system. The bill already requires the judge to consider all available sentences, and is neutral on what sentence is most appropriate for a given offense. The guidelines and policy statements of the Sentencing Commission, not a mechanistic examination of alternative sentences which may not even be applicable to a particular case, should guide the sentencing judge.

Subsection (b) of proposed 18 U.S.C. 3553 was added to S. 1437 during the Senate debate in the 95th Congress. /172/ It requires the sentencing judge to impose a sentence consistent with the sentencing guidelines unless he finds in the case an aggravating or mitigating circumstance that was not adequately considered in the formulation of the sentencing guidelines and that should result in a different sentence from that recommended in the guidelines.

((/172/ 124 Cong. Rec. S 289, January 23, 1978 (daily ed.).))

At the same time the provision provides the flexibility necessary to assure adequate consideration of circumstances that might justify a sentence outside the guidelines. A particular kind of circumstance, for example, might not have been considered by the Sentencing ++EP++ Commission at all because of its rarity, or it might have been considered only in it usual form and not in the particularly extreme form present in a particular case.

The provision recognizes, however, that even though the judge finds an aggravating or mitigating circumstance in the case that was not adequately considered in the formulation of guidelines, the judge might conclude that the circumstance does not justify a sentence outside the guidelines. Instead, he might conclude that a sentence at the upper end of the range in the guidelines for an aggravating circumstance, was more appropriate or that the circumstances should not affect the sentence at all.

The Committee rejected an amendment by Senator Mathias which would have expanded significantly the circumstances under which judges could depart from the sentencing guidelines in a particular case. The Mathias amendment would have permitted deviations from the guidelines whenever a judge determined that the characteristics of the offender or the circumstances of the offense warranted deviation, whether or not the Sentencing commission had considered such offense and offender characterisitcs in the development of the sentencing guidelines.

The Committee resisted this attempt to make the sentencing guidelines more voluntary than mandatory, because of the poor record of States reported in the National Academy of Sciences Report which have experimented with "voluntary" guidelines. In his testimony before the Committee on the Comprehensive Crime Control Act of 1983 (S. 829), the District Attorney for Middlesex County, Massachusetts, Scott Harshbarger, noted that the voluntary guidelines in Massachusetts were completely ineffective in reducing sentencing disparities and imposing a rational order on criminal sentencing in the State, because judges generally did not follow them.

Subsection (c) contains a new requirement that the court give the reasons for the imposition of the sentence at the time of sentencing. It also requires, if the sentence is within the guidelines, the court to give the reason for imposing sentence at a particular point within the range. Further, if the sentence is not within the sentencing guidelines, the court must state the specific reason for imposing a sentence that differs from the guidelines. This requirement would essentially explain why the court felt the guidelines did not adequately take into account all the pertinent circumstances of the case at hand. If the sentencing court believed the case was an entirely typical one for the applicable guideline category, it would have no adequate justificaiton for deviating from the recommended range. The need for consistency in sentences for similar offenders committing similar offenses should be sufficiently important to dissuade a judge from deviating from a clearly applicable guideline range. An offender should not receive more favorable or less favorable treatment because he happens to be sentenced by a particular judge. A judge who disagrees with a guideline may, of course, make his views known to the Sentencing Commission and may recommend such changes as he deems appropriate.

The statement of reasons is made in open court. The Committee does not intend that the statement of reasons for a sentence within ++EP++ the guidelines become a legal battleground for challenging the propriety of a particular sentence or the probation or institutional program in which the defendant is placed.

In particular, the Committee does not intend a statement that one purpose of a particular sentence is to permit the defendant to participate in a rehabilitation program to be the basis of a defendant's challenge to participation in the program because it is allegedly ineffective. It is also important that the judge state general reasons for a sentence within the applicable guidelines to inform the defendant and the public of the reasons why the offender is subject to that particular guideline and in order to guide probation officers and prison officials to develop a program to meet his needs.

The statement of reasons for a sentence outside the guidelines is especially important. Under proposed 18 U.S.C. 3742, a defendant may appeal a sentence above the applicable guidelines, and the government may appeal a sentence below the guidelines. If the appellate court finds that a sentence outside the guidelines is unreasonable, the case may be remanded to the trial court for resentencing or the sentence may be amended by the appellate court. The statement of reasons will play an important role in the evaluation of the reasonableness of the sentence. In fact, if the sentencing judge fails to give specific reasons for a sentence outside the guidelines, the appellate court would be justified in returning the case to the sentencing judge for such a statement.

Sentences within the guidelines are subject to appeal under proposed 18 U.S.C. 3742 on grounds of illegality or an incorrect application of the guidelines. As with sentences outside the guidelines, the statement of reasons may play a role in the appeallate court's decision on the legality of sentences. The statement of reasons in cases claiming incorrect application of the guidelines will probably play only a minor role in the appellate process because the sentencing court will be deciding factual issues concerning offense and offender characterisitcs which might not be discussed in the statement of reasons. /173/

((/173/ The government has the right under current law to seek correction of an illegal sentence by a writ of mandamus. See United States v. Denson, 588 F.2d 1112, 1127 (5th Cir. 1979). Such sentences will be appealable under proposed 18 U.S.C. 3742.))

Regardless of the grounds for appeal, the statement of reasons should not be subjected to such legalistic analysis that will make judges reluctant to sentence outside the guidelines when it is appropriate or that will encourage judges to give reasons in a standardized manner.

The statement of reasons also informs the defendant and the public of the reasons for the sentence. It provides information to criminal justice researchers evaluating the effectiveness of various sentencing practices in achieving their stated purposes. Finally, it assists the Sentencing Commission in its continuous reexamination of its guidelines and policy statements.

The Committee added subsection (d) to S. 1722 in the 96th Congress to allay concerns of the business community that an order of notice to victims under section 3555 or an order of restitution under section 3556 might be imposed without adequate consideration by the court of the issues involved. The subsection requires the ++EP++ court to give prior notification to the defendant and the government that it is considering imposing such an order of notice as part of the sentence.

The purpose of the notification is to enable the parties to prepare adequately for the sentencing hearing. The subsection also requires that the court, upon motion of the defendant or the government or on its own motion, (1) permit the parties to submit affidavits and written memoranda concerning matters relevant to the imposition of an order of notice or restitution, including identifiction of individual victims or classes of victims, valuation issues, and defenses that a defendant could assert in a civil action with respect to any victim; (2) afford counsel an opportunity to address in open court the issue of the appropriateness of such an order; and (3) include in its statement of reasons for the sentence specific reasons for imposing the order. The court may also, upon motion of either party or its own motion, employ additional procedures, including hearing the testimony of witnesses, that it concludes will not unduly complicate or prolong the sentencing process. The Committee does not intend that the procedure be used to resolve difficult issues; if the complexity would unduly complicate or prolong the sentencing process, the court should not consider imposing an order of notice that would have to rest upon a resolution of such complexity, although in some cases the court might find it possible and advisable to accept such facts as more readily can be resolved and use them as the basis for a more limited order of notice.

While there is one indication that the concept of criminal forfeiture was used in the colonies, the First Congress by Act of April 20, 1790, /179/ abolished forfeiture of estate and corruption of blood, including such punishment in cases of treason. From that time until 1970 there was no criminal forfeiture provision in the United States Code. In 1970, Congress passed Title IX of the Organized Crime Control Act and Title III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, /180/ which reinstated the common law provision of criminal forfeiture in organized crime cases and major drug trafficking cases. The purpose for enacting these provisions was to give law enforcement authorities greater flexibility in their fight against organized crime. In addition to the traditional penalties of imprisonment and fines, this provision was intended to separate the leaders of organized crime from their sources of economic power. /181/

((/179/ 1 Stat. 117.))

((/180/ 18 U.S.C. 1963 and 21 U.S.C. 848(a)(2). The former provision was held constitutional in United States v. Amato, 367 F. Supp. 547 (S.D.N.Y. 1973).))

((/181/ See S. Rept. No. 91-617, 81st Cong., 1st Sess. 79 (1970).))

In any discussion of forfeiture statutes, it is important to distinguish between criminal forfeiture and civil forfeiture. Criminal forfeiture is part of the sentence imposed upon conviction for a particular crime. In this sense, the proceeding is in personam against the defendant. There is no additional proceeding required before the property is forfeited to the United States. /182/ The forfeiture is automatic upon imposition of sentence. On the other hand, under those Federal statutes which provide for civil forfeiture, the forfeiture is not part of the sentence. Before property may be civilly forfeited, the United States Attorney must bring a separate in rem action against property which is declared to be unlawful or contraband under the statute, property which is used for an unlawful purpose, or property which is used in connection with the prohibited act or transaction. The concept of an in rem action is that the property is the offender and thus the action is brought against the property, /183/ a concept that developed from the ancient Roman religious practice of deodands. According to this custom, when a person was accidentally killed the object that caused his death -- the tree that fell on him, the horse that threw him, or the bull that gored him -- was forfeited to the church. /184/ Later, the crown replaced the church as the recipient of the forfeited object or its value and the proceeds were distributed for charitable purposes. /185/ Today, examples of civil forfeiture provision are those contained in the customs, narcotics, and revenue laws. ++EP++

((/182/ Thus, 28 U.S.C. 2461(b), which provides that "(u)nless otherwise provided by Act of Congress, whenever a forfeiture of property is prescribed as a penalty for violation of an Act of Congress and the seizure takes place on the high seas or on navigable waters, within the admiralty and maritime jurisdiction of the United States, such forfeiture may be enforced by a proceeding by libel which shall conform as near as may be to proceedings in admiralty", is not applicable to cases coming under this section.))

((/183/ Calero-Toledo et al. v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974).))

((/184/ Blackstone, Commentaries 306 (New ed. 1813); 3 Coke, Institute, 57-58 (1817 ed.).))

((/185/ Holmes, The Common Law 25 (1938 ed.).))

2. Provisions of the bill, as reported

Proposed 18 U.S.C. 3554 carries forward by cross-reference the provisions of 18 U.S.C. 1963, relating to criminal forfeiture in organized crime cases, and section 413 of the comprehensive Drug Abuse and Control Act of 1970 (21 U.S.C. 848), relating to criminal forfeiture in drug trafficking cases. The references are included here in order to assure that this chapter includes a complete description of sentencing options. Under proposed 18 U.S.C. 3551(b) and (c), an order of criminal forfeiture may be imposed on an individual or an organization in combination with any other form of sentence. Under proposed 28 U.S.C. 994(a)(2)(A), the United States Sentencing Commission is required to issue policy statements concerning the appropriate use of an order of criminal forfeiture.

The provision should also serve to alert fraud victims to the advisability of other action on their part (for example, news of the worthlessness of a phony "cancer cure" amy prompt a victim to visit a doctor in time for proper medical attention).

The provisions may be expected to result in an increase in individual actions and class actions for civil recovery, and should have the collateral effect of reducing the attractiveness of large-scale, profit-seeking, deceptive practices. /188/ While the perpetrator of a fraud may be convicted upon the testimony of one or two victims, the vast majority of those who have suffered from his offenses are not as readily identifiable. Since their potential claims remain unsatisfied for want of knowledge as to the offender's criminal responsibility and whereabouts, and since current fine levels are rarely high enough to permit the court to reach more than a fraction of the defendant's realized profits, the defendant, after serving the relatively limited period of imprisonment that is ordinarily imposed upon white collar defendants, is often free to enjoy a substantial remainder of the profits of his criminal venture. In combination with the higher fines that may be imposed under the bill, this provision's prompting of a substantially increased likelihood of successful civil suits should materially decrease the incentive to engage in this kind of criminal operation.

((/188/ See generally 16 Cr.L. Rptr. 2178-2183 (Nov. 1974) (transcript of interview with Judge Charles R. Renfrew of the United States District Court of the Northern District of California.)))

The power of the court to designate the advertising areas and media in which notice is to be given, and to approve the form of the notice, avoids the possibility of the offender's making only token efforts to give notice. It is actual notice rather than constructive notice that is sought to be obtained. Thus, if the group injured is readily identifiable and small, notice by letters to individuals may be sufficient. If there are multiple unknown person injured, as in the case of a major fraud, specified newspaper ads might be used. The power of the court to approve the form of notice will give the court the ability to assure that the notice is adequate to explain to persons wronged by the offense what the defendant has done. Incentive to abide by a court's order under this section is provided not only by the court's comtempt power, but also by permitting the fulfillment of the order to be made an express condition of probation in those cases in which imprisonment is not also imposed /189/ or an express condition of post-release supervision if such a term is imposed. /190/

((/189/ See proposed 18 U.S.C. 3563(b)(4).))

((/190/ See proposed 18 U.S.C. 3583(d).))

Several changes in section 3553 from the version contained as section 2005 is S. 1437 of the 95th Congress were made by the Committee in the 96th Congress. /191/ The changes were in response to the concern of the business community that the provision might be used in an inappropriate case, such as a technical violation of a regulatory requirement, with resulting injury to business and reputation not justified by the nature of the offense or the amount of harm done by it. The changes also reflect concerns that, even where notice might be appropriate, costs of giving notice might exceed costs that should reasonably be borne by the offender given ++EP++ the nature of the offense and the amount of harm done.

((/191/ See proposed 18 U.S.C. 2005 in S. 1722, 96th Cong., 1st Sess., as reported.))

Accordingly, the Committee has limited the nature of the offenses for which notice may be ordered to those offenses that involve fraud or other intentionally deceptive practices, regardless of whether the offense is committed by an individual or by an organization. The Committee has also amended the notice requirement to provide that the convicted offender may be ordered to give "reasonable" notice and explanation of the offense and to require that the judge shall consider, in determining whether to require notice, not only the factors set forth in section 3553(a), but also the cost of giving notice as it relates to the loss caused by the offense. In addition, the Committee has limited to $20,000 the amount of costs that the court may order the defendant to pay for such notice. /192/

((/192/ In certain cases where the execution of the order has not been stayed, any costs in excess of that amount might be assumed (or costs pending payment of the ordered amount might temporarily be assumed) by the government, if otherwise appropriate and authorized, especially in cases in which timely notice is important because of the fraud's risk to the health of the victims or because of the incipient running of the civil statute of limitations.))

These amendments are intended to assure that the order of notice requires only such publication as is reasonable under the circumstances of the case. In a major fraud case involving identifiable consumers defrauded of substantial amounts of money, the defendant might reasonably be expected to give individual notice. In a major fraud case involving hundreds or thousands of consumers, each of whom sustained minor losses, notice might more appropriately be given by publiction in newspapers reaching the bulk of the persons defrauded instead of individual notice. The Committee does not intend that the section be used to order "corrective advertising" or to subject a defendant to public derision. Publication should not be required beyond that which is necessary to notify the victims of the defendant's conviction. Further, if identifying the victims is so complex an undertaking that it could unduly complicate or prolong the sentencing process, the court should not require that such notice be given other than to those victims who can more readily be identified. The procedures set forth in section 3553(d) should assist the court in determining whether notice should be ordered in those cases in which complex issues are not raised. The fact that notice was ordered or given is not intended to confer any legal right on any person, and the notice may include a caveat that it is merely informational and creates no legal rights.

Proposed 18 U.S.C. 3642 permits a defendant to appeal a sentence that includes an order of notice. Because of the potential harm to business and reputation, the execution of an order of notice should be stayed pending appeal unless the court finds that the appeal or petition for review of sentence is frivolous or taken for purposes of delay.

Thus, proposed 18 U.S.C. 3551 (b) and (c) make clear that an order of restitution may be imposed in addition to any other kind of sentence. Proposed 28 U.S.C. 994(a)(2)(A) requires that the United States Sentencing Commission issue policy statements concerning the appropriate use of orders of restitution. Finally, proposed 18 U.S.C. 3563(a)(2) requires that, if a person convicted of a felony is sentenced to a term of probation, a condition of that probation must be that he pay a fine or restitution, or perform community service.

18 U.S.C. 3579(g), as enacted by section 5(a) of the Victim and Witness Protection Act of 1982 and redesignated as 18 U.S.C. 3663(g) by this bill, requires that if a defendant who is ordered to pay restitution is placed on probation, the payment of restitution is a condition of probation. Failure to satisfy this condition would be a violation subject to the provisions of proposed 18 U.S.C. 3565. An order of restitution may also be made a condition of a term of supervised release imposed to follow a term of imprisonment pursuant to proposed 18 U.S.C. 3583(d). Violations of such a condition of post-release supervision would be comtempt of court.

3. Provisions of the bill, as reported

Proposed 18 U.S.C. 3559 did not appear in S. 1437 as passed by the Senate in the 95th Congress. That bill instead specified the applicable grade for each offense defined in title 18 and amended each section outside title 18 that described an offense to indicate the sentence grade that applied to the offense. In general those amendments specified that an offense outside title 18 had the grade for which the proposed Criminal Code specified a maximum term of imprisonment closest to that for the offense in current law.

The Committee has reexamined the desirability of amending current law in an attempt to conform sentencing provisions to the grading scheme of the bill, and has decided that a general provision such as section 3559 is preferable at this time. To amend each individual section implies that the Committee has given careful consideration to grading all existing offenses, when, in fact, this has not been the case. Instead, the Committee has postponed the restructuring of Federal offenses according to their relative seriousness. The Sentencing Commission will undoubtedly have recommendations concerning the appropriate grades for offenses as it develops sentencing guidelines. Current maximum penalties are set at very uneven levels, and some are so inconsistent with the relative seriousness of the offense that the Sentencing Commission will probably find it necessary to recommend some amendments before sentencing guidelines are in place. The Committee will welcome the Commission's suggestions.

Two primary goals are achieved by this section. The first clarifies the applicability of the various sentencing provisions in title 18 by indicating how the new grading scheme will apply to existing offenses until they are graded by legislation. The second substantially increases maximum fine levels for most offenses. Section 3559 achieves these goals in a simple fashion without implying that sentences have been rationalized -- a step which the Committee believes should be undertaken with the assistance of the Department of Justice, the United States Sentencing Commission, and other interested agencies, after passage of this bill. Not only are there too many criminal offenses, and little rationality in the sentences provided for those offenses, but there is also no clear line between the use of civil and criminal sanctions for essentially regulatory offenses.

Section 3559 (a) grades offenses for which no letter grade is provided according to the maximum term of imprisonment applicable to the offense.

Section 3559 (b) states that the sentence for an offense graded according to subsection (a) has the attributes of any other sentence with that grade under the bill with one exception: the fine may not exceed the maximum fine authorized by the bill or the statute that describes the offense, whichever is higher. Thus, section 3559 will often have the effect of increasing the maximum fine provided in current law, but never of lowering it.

The Committee intends that future legislation creating new Federal offenses specify the grade for the offense. It encourages the Committees with other substantive jurisdiction to consult with this Committee and the Department of Justice in determining the appropriate ++EP++ grade for offenses.

The Committee is aware, however, that future legislation may be passed that inadvertently fails to take these steps. Accordingly, section 3559 will clarify questions that might otherwise arise as to the applicability of the general Federal sentencing law to the new offense.

The section goes beyond current law by also precluding a sentence of probation for those convicted of an offense with a maximum authorized prison term, pursuant to Section 3581(b)(2), of not more than 25 years. Second, under subsection (a)(2), probation is unavailable to an offender who is convicted of an offense for which the imposition of a sentence of probation is specifically precluded. /194/

((/194/ The Committee generally looks with disfavor on statutory minimum sentences to imprisonment, since their inflexibility occasionally results in too harsh an application of the law and often results in detrimental circumvention of the laws. The Committee believes that for most offenses the sentencing guidelines will be better able to specify the circumstances under which an offender should be sentenced to a term of imprisonment and those under which he should be sentenced to a term of probation.))

Third, subsection (a)(3) differs from the provision of 18 U.S.C. 3651 that permits a sentence to be split between a term of imprisonment and a suspended sentence with probation /195/ by specifically barring a sentence to probation in a case in which a defendant has been sentenced at the same time to a term of imprisonment either for the same offense or for a different offense. The same result may be achieved by a more direct and logically consistent route -- under sections 3581 and 3583, the court may provide that the convicted defendant serve a term of imprisonment followed by a term of suspervised release. The provision will permit latitude in the specification of the time to be spent in the custody of the Bureau of Prisons and in the nature of the facility. It will also be more flexible than current law in permitting a sentence to imprisonment of any permissible length to be followed by a term during which the defendant receives street supervision. The Committee is of the opinion that this flexibility will permit the court to formulate a sentence best suited to the individual needs of the defendant. For example, a convicted defendant could in an appropriate case be required to spend the first three months in prison, followed by two years of street supervision, or could be sentenced to spend two years in prison followed by six months' street supervision. If, instead, the judge believes that full-time incarceration of a convicted defendant is not appropriate but is concerned that the defendant needs more supervision than is generally available to a person on street supervision, he can sentence him to probation on the condition that he spend evenings or weekends in prison as a condition of probation (section 3563(b)(11)) of live in a community corrections facility during part of his term of probation (section 3563(b)(2)). Such provision would permit the defendant to continue employment and his contacts with his family and community.

((/195/ 18 U.S.C. 4205(f) provides a procedure, which achieves the same result, by which the court may specify that a person sentenced to a term of imprisonment of more than six months and less than one year shall be released as if on parole at a date prior to the expiration of his sentence.))

A major distinction between the proposed section and existing law is the maximum term of probation authorized for an offense. 18 U.S.C. 3651 provides a term of probation of up to five years without regard to the seriousness of the offense. Section 3561(b), on the other hand, provides for differing terms depending on the seriousness of the violation. When the offense is a felony there is a minimum term of one year and a maximum of five years. A misdemeanor ++EP++ conviction may lead to a term of probation of up to five years with no required minimum.

An infraction may result in up to one year's probation, again with no minimum. /196/

((/196/ The National Commission had proposed inflexible terms of probation of five years for a felony, 2 years for a misdemeanor, and 1 year for an infraction. The Committee believes that such fixed periods might unduly restrict the court's options. See the recommendation of the National Legal Aid and Defender Association, Subcommittee Criminal Code Hearings, Part III, at 1420.))

While the Committee is generally opposed to statutory minimum sentences, it believes that a convicted felon who is sentenced to probation rather than to a term of imprisonment should be subject to the jurisdiction of the court for a period of at least a year. Requiring this minimum probationary period will assure that he is able to comply with the law for that period and that he will be subject to at least one other condition set forth in section 3563(a)(2).

The section, like current law, creates no presumption for or against probation. The Committee believes that the sentencing guidelines can more adequately delineate those cases in which a term of probation is preferable to a term of imprisonment, or vice versa, as a means of achieving the purposes of sentencing set forth in section 3553(a)(2).

3. Provisions of the bill, as reported

Proposed 18 U.S.C. 3562 requires that the judge, in determining whether to impose a sentence to a term of probation upon an organization or an individual, and in setting the term and conditions of any sentence to probation that is imposed, consider the factors set forth in section 3553(a) to the extent that they are applicable. In the abstract, the factors required to be considered create no presumption either for or against probation. They are set out merely to make more specific the considerations traditionally taken into account by the courts under the broad language of 18 U.S.C. 3651 and to assure their being given appropriate weight in all cases. They are designed to assist the court in exercising its discretion reasonably.

The effect of these considerations is to require the court to focus carefully upon the needs of the defendant and the needs of society. Those who emphasize the rehabilitative purpose of sentencing to the exclusion of other purposes have supported the view that probation should be the sentence of preference. /202/ Others who would emphasize the necessity of providing effective deterrence to criminal conduct and to insure just punishment of offenders in a time of rapidly rising crime rates have suggested that there should be a presumption against the utilization of the sentence of probation for some of the most serious offenses by calling for mandatory minimum prison terms. There is no doubt that imprisonment, when compared with probation, is more effective as punishment, is more readily perceived by the public as a deterrent, and is clearly the most effective means of incapacitation for protection of the public. On the other hand when the purpose of sentencing is to provide the educational opportunity, vocational training, or other correctional treatment required for rehabilitation, given the current state of knowledge, probation is generally considered to be preferable to imprisonment. This does not mean, however, that it is not possible to formulate conditions of probation that will serve deterrent and punishment purposes -- or even limited incapacitative purposes -- in and appropriate case. Thus, the Committee feels that the best course is to provide no presumption either for or against probation as opposed to imprisonment, but to allow the Sentencing Commission and, under its guidelines, the courts, the full exercise of informed discretion in tailoring sentences to the circumstances of individual cases.

((/202/ See Subcommittee Criminal Code Hearings, Part XI, at 7796-7862 (statement on behalf of the National Legal Aid and Defenders Association).))

In a particular case, the required consideration of the purposes of sentencing and of the sentencing guidelines and policy statements issued pursuant to 28 U.S.C. 994(a) should serve to sharpen the court's focus on all matters pertinent to its decision. The Committee is of the view that in the past there have been many cases, particularly in instances of major white collar crime, in which probation has been granted because the offender required little or nothing in the way of institutionalized rehabilitative measures and because society required no insulation from the offender, without due consideration being given to the fact that the heightened deterrent ++EP++ effect of incarceration and the readily perceivable receipt of just punishment accorded by incarceration were of critical importance.

The placing on probation of an embezzler, a confidence man, a corrupt politician, a businessman who has repeatedly violated regulatory laws, an operation of a pyramid sales scheme, or a tax violator, may be perfectly appropriate in cases in which, under all the circumstances, only the rehabilitative needs of the offender are pertinent; such a sentence may be grossly inappropriate, however, in cases in which the circumstances mandate the sentence's carrying substantial deterrent or punitive impact. This is not meant to imply that the Committee considers a sentence of imprisonment to be the only form of sentence that may effectively carry deterrent or punitive weight. It may very often be that release on probation under conditions designed to fit the particular situation will adequately satisfy any appropriate deterrent or punitive purposes. /203/ This is particularly true in light of the new requirement in section 3563(a) that a convicted felon who is placed on probation must be ordered to pay a fine or restitution or to engage in community service; he cannot simply be released on probation with no meaningful sanction. Similarly, the Committee expects that in situations in which rehabilitation is the only appropriate purpose of sentencing, that purpose ordinarily may be best served by release on probation subject to certain conditions. In sum, the presence of the same predominant reason for imposing a sentence in different cases will not always lead logically to the same type of sentence. A congressional statement of a preferred type of sentence might serve only to undermine the flexibility that the criminal justice system requires in order to determine the approprite sentence in a particular case in the light of increased knowledge of human behavior.

((/203/ See, e.g., 16 Cr. L. Rptr. 2178 (Nov. 1974) (transcript of interview with Judge Charles B. Renfrew of the Northern District of California).))

The Committee is also mindful that during a period in which the incidence of a particular kind of crime is increasing rapidly, it may incidency of a particular kind of crime is increasing rapidly, it may be entirely appropriate for the court to give paramount emphasis to the deterrent purpose of sentencing. Conversely, in a situation involving an offense of little notoriety that is not frequently committed and that is committed under circumstances indicating little likelihood of recidivism, the singular significance of the rehabilitative purpose of sentencing may well almost mandate a sentence to probation. In all cases, the section's concentration of attention upon the aims of the criminal justice system is designed to encourage the intelligent balancing of often competing considerations.

The application of the specified considerations requires the court first to consider the nature of the offense and the history and characteristics of the offender. With those in mind, it must then consider the four basic purposes of sentencing as established in section 3553(a)(2) to the extent that one or more of them are applicable to the case, and must examine the sentencing guidelines and policies of the Sentencing Commission. Having considered these factors, the court is then required to determine whether a term of probation would be appropriate and, if so, the length and condition of such a term. ++EP++

The language of section 3562(b) is intended to codity current judicial decisions which hold that judgments imposing probation are final judgments for all purposes, particularly for purposes of appeal, even though the sentence is subject to compliance with specified conditions, is revocable for noncompliance with those conditions, /204/ and is subject to modification, extension, or early termination in certain situations. /205/ The language of section 3562(b)(3) is intended to make clear that a sentence that may be appealed because it is outside the guidelines is provisional for the purpose of appeal of the sentence pursuant to section 3742, but is otherwise final. /206/

((/204/ Nix v. United States, 131 F.2d 857 (5th Cir.), cert. denied, 318 U.S. 771 (1943); Buhler v. Pescor, 63 F. Supp. 632 (W.D. Mo. 1945).))

((/205/ See, e.g., United States v. Albers, 115 F.2d 833 (2d Cir. 1940).))

((/206/ See proposed 18 U.S.C. 3742.))

Such a sentence is for no more than six months' imprisonment with the imposition or execution of the remainder of the sentence suspended and the defendant placed on probation. The court may revoke or modify any condition of probation.

3. Provisions of the bill, as reported

Proposed 18 U.S.C. 3563(a) goes beyond the provisions of current law in requiring that the court impose one mandatory condition of probation on an offender convicted of a misdemeanor or an infraction, and two mandatory conditions on an offender convicted of a felony.

Under subsection (a)(1), the court is required to provide as a condition of probation for any offense that the defendant not commit another crime during the term of probation. /208/ It should be emphasized, however, that this is the only mandatory condition of probation for an offender convicted of a misdemeanor or an infraction. The court is not required, for example, to specify as a condition of probation even that the offender report regularly to a probation officer since in some cases the court may conclude that unsupervised probation is appropriate. /209/

((/208/ This provision recognizes a current practice of the Federal courts.))

((/209/ This differs somewhat from current practice. The form used by Federal judges to list conditions of probation lists a number of conditions routinely imposed, such as maintaining reasonable hours, notifying probation officer of job changes, not leaving the district without notifying the probation officer, and reporting to the probation officer as required. While the Committee agrees that these conditions should be imposed when the case warrants, it does not think the conditions should apply in all cases.))

Under subsection (a)(2), the court is also required to impose on a convicted felon who is sentenced to a term of probation a condition that he pay a fine or restitution, /210/ or that he engage in community service. This requirement assures that a convicted felon will receive a publicly discernible penalty even if the circumstances of the offense do not justify a term of imprisonment. It also assures that the sentence will be fashioned to serve deterrent or punishment purposes as well as rehabilitative purposes in appropriate cases. (The court may in appropriate cases impose a combination of the conditions described in subsection (a)(2).)

((/210/ A condition of restitution is a mandatory condition of probation in another sense as well. Under 18 U.S.C. 3579(g) (which is redesignated 18 U.S.C. 3663(g) by section 202(a)(1) of this bill), if a defendant is placed on probation and ordered to pay restitution, the restitution order is a condition of probation by operation of law.))

Proposed 18 U.S.C. 3563(b) lists some of the discretionary conditions that may be placed on a probationer's freedom. These conditions must be reasonably related to the nature and circumstances of the offense, the history and characteristics of the offender, and the four purposes of sentencing set forth in section 3553(a)(2). If a condition involves a deprivation of property or liberty, it must also be reasonably necessary to carry out the purposes of sentencing set forth in section 3553(a)(2). In addition, under section 3562(a), the policy statements and sentencing guidelines promulgated by the Sentencing Commission would be considered in determining the conditions of probation. Most of the conditions set forth in section 3563(b) have been used and sanctioned in appropriate cases under ++EP++ the current statute. /211/

The list is not exhaustive, and it is not intended at all to limit the court's options -- conditions of a nature very similar to, or very different from, those set forth may also be imposed. On the other hand, except as provided in subsection (a), none of the conditions listed in the subsection is required to be imposed. The conditions, many of which closely follow the proposals of the National Commission, /212/ are simply designed to provide the trial court with a suggested listing of some of the available alternatives which might be desirable in the sentencing of a particular offender. /213/ It is anticipated that, in determining the conditions upon which a defendant's probation is to be dependent, the court will review the listed examples in light of the Sentencing Commission's guidelines and policy statements, weigh other possibilities suggested by the case, and, after evaluation, impose those that appear to be appropriate under all the circumstances. It is certainly not intended that all the conditions suggested in subsection (b) be used for every defendant, but rather that conditions be tailored to each defendant to carry out the purposes of probation in his case. In addition, the court may not impose a condition of probation which results in a deprivation of liberty for the defendant unless that deprivation is "reasonably necessary" to carry out the purposes of the sentence.

((/211/ See, e.g., Bernal-Zazueta v. United States, 225 F.2d 64 (9th Cir. 1955) (no commission of crime during term of probation); United States v. Wilson, 469 F.2d 368 (2d Cir. 1972) (support dependents and meet family obligations); Stone v. United States, 153 F.2d 331 (9th Cir. 1946) (payment of fine, refrain from specified employment); United States v. Velazco-Hernandez, 565 F.2d 583 (9th Cir. 1977) United States v. Miller, 549 F.2d 105 (9th Cir. 1976) (refrain from use of alcohol); Whaley v. United States, 376 U.S. 911 (9th Cir. 1963), cert. denied, 376 U.S. 911 (refrain from employment in business related to offense).))

((/212/ National Commission Final Report, supra note 1, Section 3103.))

((/213/ While most of the conditions have as their primary purpose the rehabilitation of the offender, some of the listed alternatives, of course, would also tend to affect the punitive and deterrent purposes of sentencing -- and even, to a certain degree, the incapacitative purpose in limited kinds of cases.))

Paragraph (1) carries forward the discretionary probation condition in current law that requires the defendant to support his dependents and expands the condition to permit the court to order in appropriate cases that the defendant meet other family responsibilities.

Paragraph (2) carries forward current law in permitting the imposition of a condition of probation requiring payment of a fine, thus making the recalcitrant offender face the possibility of a summary increase in punishment for such a probation violation, as opposed to leaving him to face only the normal fine collection procedures. Of course, as provided by section 3572(a), the fine may be not set so high that the defendant, acting in good faith, is unable to pay it. A fine may be imposed both as a separate sentence and as a condition of probation. It also may be imposed pursuant to subsection (a)(2) as a mandatory condition of probation on a convicted felon instead of or in addition to a condition ordering payment of restitution or community service.

Paragraph (3) carries forward the current law provision permitting imposition of a condition that the defendant be required to make restitution to a victim. If a person placed on probation is ordered to make restitution, that order automatically becomes a condition of probation. /214/ The court could in an appropriate case order ++EP++ restitution not covered by paragraph (b)(3) (and section 3556) under the general provisions of subsection (b)(20).

((/214/ See 18 U.S.C. 3663(g) (former 18 U.S.C. 3579(g)).))

In a case involving bodily injury, for example, restitution as a condition of probation need not necessarily be limited to medical expenses. The defendant in a particular case may have an interest in satisfying such a condition if it will cause the court to forego sentencing him to a term of imprisonment. The court may also choose to impose a requirement of payment of restitution as the mandatory condition of probation he must impose pursuant to subsection (a)(2).

Paragraph (4) permits the judge to require that the defendant give notice of his conviction to victims of the offense in accord with the provisions of section 3555. An order of notice may be both a separate sentence and a condition of probation. Making an order of notice a condition of probation gives the court the possibility of revocation of probation as an enforcement tool for violation of the condition.

Paragraph (5) permits the judge to order as a condition of probation that the defendant work conscientiously at suitable employment or conscientiously pursue a course of study or vocational training that will equip him for suitable employment. When combined with other appropriate conditions, this condition might enable the court to avoid sending to prison some defendants who might otherwise be incarcerated. For example, a judge might devise a probation program for a non-dangerous defendant whereby he spend evenings or weekends in prison or live in a community corrections facility, and work or go to school during the day.

Paragraph (6) suggests the condition that an individual defendant refrain from engaging in a specific occupation, business, or profession, or that either an individual or organization offender engage in a specified occupation, business, or profession only to a stated degree or under specified circumstances. The condition may be imposed only if the occupation, business, or profession bears a reasonably direct relationship to the nature of the offense. Thus a bank teller who embezzles bank funds might be required not to engage in an occupation involving the handling of funds in a fiduciary capacity. /215/ Similarly, an organization convicted of executing a fraudulent scheme might be directed to operate that part of the business in a manner that was not fraudulent. The Committee recognizes the hardship that can flow from preventing a person from engaging in a specific occupation, business, or profession, particularly for those activities requiring many years of education and experience. This particular condition of probation should only be used as reasonably necessary to protect the public. It should not be used as a means of punishing the convicted person. Insofar as this paragraph might be used to disqualify a person from holding a management position in an organization, the Committee emphasizes that, absent some other relationship between the position held and the nature of the offense, such a disqualification must bear a reasonable relationship to an abuse of the management position for a criminal purpose. Paragraph (6) is intended to be used to preclude the continuation or repetition of illegal activities while avoiding a ++EP++ bar from employment that exceeds that needed to achieve that result.

((/215/ The constitutional permissibility of such a condition has been recognized. See Whaley v. United States, 324 F.2d 356 (9th Cir. 1963), cert. denied, 376 U.S. 911 (1964).))

The Committee has modified paragraph (6) from the language in S. 1437 as passed by the Senate in the 95th Congress. The provision had originally been cast in terms of ordering an organization, as well as an individual, to refrain from engaging in a particular occupation, business, or profession. Because of business concerns that the listing of the conditions might encourage inappropriate use to put a legitimate enterprise out of business, that part of the provision has been modified to relate only to individual offenders. This deletion should not be construed to preclude the imposition of appropriate conditions designed to stop the continuation of a fraudulent business in the unusual case in which a business enterprise consistently operates outside the law.

Paragraph (7) allows the court to requires the offender to refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons. /216/ As in the case with the other discretionary conditions of probation listed in section 3563, the conditions suggested by this paragraph would have to be tailored to the particular circumstances of the defendant. For example, if the defendant were a convicted drug trafficker, it might ordinarily make sense to condition his probation upon his avoidance of other known drug traffickers, but if he were to be employed during the period of his probation by a business that makes a practice of hiring former offenders, the application of such a condition would have to be designed to avoid any suggestion that the defendant could not engage in necessary occupational associations with his co-workers.

((/216/ This kind of provision has also been recognized as permissible. See Birzon v. King, 469 F.2d 1241 (2d Cir. 1972). The phrase "unnecessarily associating" is meant to be construed as not precluding "incidental contacts between ex-convicts in the course of work on a legitimate job for a common employer." Arciniega v. Freeman, 404 U.S. 4 (1971).))

Paragraph (8) permits the court to require as a condition of probation that the defendant refrain from the excessive use of alcohol and from any use of narcotic drugs or other controlled substances without a prescription from a licensed medical practitioner. It is not intended that this condition of probation be imposed on a person with no history of excessive use of alcohol or any illegal use of a narcotic drug or controlled substance. To do so would be an unwarranted departure from the principle that conditions of probation should be reasonably related to the general sentencing considerations set forth in section 3553(a)(1) and (a)(2).

Paragraph (9) permits the imposition of a condition of probation prohibiting the defendant from possessing a firearm, destructive device, or other dangerous weapon. While this condition may only be imposed if it is reasonably related to the purposes of sentencing, there are, of course, other Federal, State, and local restrictions on firearms and explosives which may apply to the defendant as well.

Paragraph (10) notes the availability of the condition that the defendant undergo medical or psychiatric treatment as specified by the court and remain in a specified institution if required for medical or psychiatric purposes. Under this paragraph a court may require a defendant to participate in the program of a narcotic or alcohol treatment facility, regularly visit a psychiatrist, participate ++EP++ in a recognized group therapy program, or undergo some other form of treatment for physical or emotional problems.

Because receipt of treatment in an institution rather than on an outpatient basis would involve a deprivation of liberty, the judge would have to assure himself that it was reasonably necessary to a purpose of sentencing set forth in section 3553(a)(2) to require residence at an institution.

Paragraph (11) authorizes as a condition that the probationer remain in the custody of the Bureau of Prisons during nights, weekends, or other intervals of time not to exceed in the aggregate one year, during the first year of probation. This provision permits short periods of commitment to a training center or institution as a part of a rehabilitative program. Flexibility is provided by permitting confinement in split intervals, thus authorizing, for example, weekend imprisonment with release on probation during the week for educational or employment purposes, or nighttime imprisonment with release for such purposes during working hours. This condition could be used only to deprive the defendant of his liberty to the extent "reasonably necessary" for the purposes set forth in section 3553(a)(2). It could also be used, for example, to provide a brief period of confinement, e.g., for a week or two, during a work or school vacation. It is not intended to carry forward the split sentence provided in 18 U.S.C. 3651, by which the judge imposes a sentence of a few months in prison followed by probation. It such a sentence is believed appropriate in a particular case, the judge can impose a term of imprisonment followed by a term of supervised release under section 3583, which section was amended by the Committee in the 97th Congress to permit such application.

Paragraph (12) provides that the judge may impose as a condition of probation that the defendant reside at, or participate in the program of, a community corrections facility for all or part of the term of probation.

Paragraph (13) provides that the judge may require as a condition of probation that the defendant work in community service as directed by the court. This provision is intended by the Committee to encourage continued experimentation with community service as an appropriate condition in some cases. This condition is also one of the three choices from which the judge must select a mandatory condition to be imposed on a convicted felon who is sentences to probation. This condition might prove especially useful in a case in which the imposition of a fine or restitution is not appropriate, either because of the defendant's inability to pay or because the victims cannot be readily identified or the actual amount of injury is slight.

Paragraph (14) notes that the probationer may be required to reside in a certain place or refrain from residing in a particular place, thus permitting the court to remove the defendant from a detrimental environment which apparently contributed to his prior anti-social behavior (e.g., a criminogenic environment) and to reside during the term of probation in an area -- perhaps in a distant district /217/ more conductive to rehabilitation. ++EP++

((/217/ See proposed 18 U.S.C. 3605.))

Paragraphs (15) through (19) contain commonly employed conditions relating to day-to-day supervision of a probationer. Paragraph (15) permits the court to order that the defendant remain in the jurisdiction of the court unless he receives permission from the court to leave. In appropriate cases, of course, jurisdiction over the probationer may be transferred from one district to another, even on a short-term basis, in order to assure continuing supervision over the probationer. Paragraph (16) permits the court to order that the defendant report to a probation officer as directed by the court or the probation officer. This condition is not mandatory -- a defendant may be placed on unsupervised probation with only the condition that he not commit a crime or with another condition that does not require day-to-day supervision, such as an order to pay a fine or to make restitution. Paragraph (17) permits the judge to order as a probation condition that a probation officer be permitted to visit the defendant at home or at another place specified by the court (but not by the probation officer). Paragraph (18) relates to answering inquiries of the probation officer and notifying him of any change of address or employment. Paragraph (19) permits the court to require that the defendant notify the probation officer promptly if he is arrested or questioned by a law enforcement officer.

Finally, paragraph (20), like current law, permits the judge to fashion other conditions of probation. These would include, inter alia, conditions to achieve the assistance of the defendant in effectuating the goals of other listed conditions.

Unlike current law, subsection (b) specifically states that the conditions must be reasonably related to the factors set forth in section 3553 (a)(1) and (a)(2), and that any condition that involves a restriction of liberty must be reasonably necessary to the purposes of sentencing set forth in section 3553(a)(2). This language is designed to allay the fears of such disparate groups as the ACLU and the Business Roundtable that probation conditions might be too restrictive in a particular case or might involve more supervision than is justified by the case. The judge is limited in imposing conditions of probation to imposing only those that carry out the purposes of sentencing in a particular case. He cannot restrain the liberty of a defendant who does not need that level of punishment or incapacitation, nor can he place business conditions on an organization that are unrelated to the purposes of sentencing for the offense of which the organization is convicted. It is not the intent of the Committee that the courts manage organizations as a part of probation supervision, but it is the intent of the Committee that all necessary conditions that are related to the characteristics of the offense and the offender and that are directed to the purposes of sentencing be imposed.

Proposed 18 U.S.C. 3563(c) provides that the court, after a hearing, /218/ may, pursuant to the provisions applicable to the initial setting of conditions of probation, modify, reduce or enlarge the conditions of a sentence of probation at any time prior to the expiration or termination of the term of probation. This provision brings forward the substance of current law (18 U.S.C. 3651) and Rule 32.1(b) ++EP++ of the Federal Rules of Criminal Procedure.

((/218/ See Skipworth v. United States, 508 F.2d 598 (3d Cir. 1975).))

It enables the court to adjust the conditions of probation to the changed circumstances of the defendant.

The requirement in proposed 18 U.s.c. 3563(d) that the court direct the probation officer to provide to a defendant a written statement that sets forth the conditions of a sentence of probation with sufficient clarity and specificity that it can serve as a guide for the defendant's conduct and for such supervision as is required, is new to Federal law. /219/ The Committee believes, however, that such a statement should be required both as a matter of fairness and as a matter of efficient program administration. /220/

((/219/ See Zaroogian V. United States, 367 F.2d 959 (1st Cir. 1966); McHugh V. United States, 230 F.2d 262 (1st Cir.), cert. denied, 351 U.S. 955 (1956).))

((/220/ An error in the recitation of conditions in the statement, or even an accidental failure to supply such a statement, should not necessarily be construed as a reason to impugn the propriety or validity of a decision to revoke or modify the probation because of a breach of a condition actually imposed, since the court will have stated those conditions during the sentencing proceeding in any event.))

18 U.S.C. 3653 grants discretion to a court, upon review of a probationer's conduct, to discharge the probationer from supervision and terminate the proceedings against him, or to extend the term of probation. However, the authority to extend the term of probation is subject to the five-year limitation contained in 18 U.S.C. 3651. /226/

((/226/ United States V. Edministon, 69 F. Supp. 382 (W.D. La. 1947); United States V. Buchanan, 340 F. Supp. 1285 (E.D. N.C. 1972).))

3. Provisions of the bill, as reported

Subsection (a) of proposed 18 U.S.C. 3564 provides that the term of probation commences on the day the sentence of probation is imposed, unless otherwise ordered by the court.

Subsection (b) provides that multiple terms of probation are to run concurrently, regardless of when or for what offenses or by what jurisdiction they are imposed, and that a term of probation is to run concurrently with a term of supervised release. Consequently, unlike the situation under current law, consecutive terms of probation may not be imposed. Of course, if a defendant is sentenced to terms of probation for offenses of varying seriousness, the maximum term of probation would be measured according to the term for the most serious offense. This subsection also makes it clear that probation does not run during any period in which the defendant is incarcerated for a period of at least 30 consecutive days in connection with a Federal, State or local criminal conviction.

Subsection (c) authorizes the court, after considering the factors set forth in section 3553(a), to terminate a term of probation and to discharge the defendant prior to its expiration at any time in the case of a misdemeanor or an infraction or at any time after one year in the case of a felony, if the conduct of the defendant and the interest of justice warrant such action. While current law /227/ permits such early termination at any time without regard to the degree of the offense, it appears appropriate to retain the court's jurisdiction over an offender convicted of a felony for at least a one-year period. If the court determines that an offender does not need active supervision, it may impose only the least onerous discretionary conditions of probation that it decides to be advisable, or may permit the probationer to remain at liberty subject only to the conditions that he not commit another offense and, if he is convicted of a felony, that he pay a fine or restitution, or engage in community service. /228/

((/227/ 18 U.S.C. 3653.))

((/228/ See proposed 18 U.S.C. 3653(a).))

Subsection (d) authorizes the court, after a hearing and pursuant to the provisions applicable to the initial setting of the term of probation, to extend a term of probation, at any time prior to its expiration or termination, unless the maximum term was previously imposed. This provision is necessary, the Committee believes, to encourage judges to initially impose what appears to be the most appropriate length for the term of probation. If judges feared that a ++EP++ term would later be found to be too short and that the court would be powerless to extend it, they might well feel constrained to impose the maximum term in all cases.

Subsection (e) provides that a term of probation remains subject to revocation during its continuance.

Thus, the section more narrowly restricts the time within which probation may be revoked than does current 18 U.S.C. 3653, which permits revocation at any time within the maximum period of five years regardless of the term initially imposed or the seriousness of the offense.

In a case in which a serious violation has occurred, but in which the court has found reason to explore alternatives to incarceration, the current state of the law needlessly hampers the court in its fashioning of an appropriate sentence. It is with the intent of enhancing the ability of the courts to fashion remedies appropriate to offenses by providing maximum fines at levels that are suitable to our times -- and at levels that will help to eliminate the popular view that certain offenses will lead only to a nominal fine equivalent to a minor cost of doing business -- that the Committee has drafted the provisions of the subchapter.

B. Forgery of naturalization or citizenship papers carries the same maximum five-year prison term as does forgery of an entry visa, yet the former offense carries a maximum fine of $5,000 and the latter a maximum fine of only $2,000. /236/ Moreover, another offense of this kind, falsification of an invoice by a consular official, carries a maximum prison term of three years and thus, presumably, is conceived to be a less serious offense than the two cited forgery offenses, yet it provides for a $10,000 fine. /237/

((/236/ 18 U.S.C. 1426; 18 U.S.C. 1546.))

((/237/ 18 U.S.C. 1019.))

C. Robbery of a Federally insured bank is punishable by a fine of up to $5,000, as well as by a sentence to imprisonment. /238/ Robbery of a post office must result in a term of imprisonment but cannot result in a fine. /239/

((/238/ 18 U.S.C. 2113(a).))

((/239/ 18 U.S.C. 2114.))

D. A postmaster who demands more than the authorized postage for mail matter and a vessel inspector who collects more than the authorized fee both are subject to a maximum prison term of six months. The vessel inspector can be fined up to $500, while the postmaster is subject to a maximum fine of only $100. /240/

((/240/ 18 U.S.C. 1726; 18 U.S.C. 1912.))

E. One who injures property of the United States is subject to a fine of up to $10,000 if the damage exceeds $100, and a fine up to $1,000 if the damage is less than $100. /241/ One who injures property of the United States on a wildlife refuge, no matter how much the damage, is subject to a maximum fine of only $500. /242/

((/241/ 18 U.S.C. 1361.))

((/242/ 18 U.S.C. 41.))

F. A clerk of court who converts funds which have come into his hands by virtue of his official position may be punished by up to ten years' imprisonment if the amount exceeds $100. /243/ Conversion by a clerk of court of funds which belong in the registry of the court also carries a maximum sentence of ten years in prison if the amount exceeds $100. /244/ But in the former case a fine can equal double the amount converted, while in the latter a fine cannot exceed the amount converted.

((/243/ 18 U.S.C. 645.))

((/244/ 18 U.S.C. 646.))

3. Provisions of the bill, as reported

Subsection (a) authorizes the use of fines in criminal sentencing. There are no offenses for which a fine may not be imposed. As provided in section 3551(b) and (c), a fine may be imposed alone or in addition to any other sentence. Payment of a fine may also be made a condition of probation pursuant to section 3562(b)(2), or a mandatory condition of probation pursuant to section 3562(a)(2), so that revocation of probation is available as a means of enforcing the fine. A fine may also be made a condition of post-release supervision, permitting the court to hold a defendant in contempt if he fails to pay it.

Subsection (b) establishes the maximum limits of fines for felonies, misdemeanors, and infractions, except to the extent that a higher limit may otherwise be authorized in this chapter for the offense. The fine levels set forth in the subsection are considerably ++EP++ higher than those generally authorized by current law, /245/ and are designed to establish an effective scale for pecuniary punishment and deterrence that will reflect current economic realities. /246/

Penalties for organizations are set at higher levels than those for individuals, following the New York model, /247/ in order to take cognizance of the fact that a sum of money that is sufficient to penalize or deter an individual may not be sufficient to penalize or deter an organization, both because the organization is likely to have more money available to it and because the sentence for an organization obviously cannot include a term of imprisonment.

((/245/ See discussion of proposed 18 U.S.C. 3559(b).))

((/246/ Such substantially higher fine levels were recommended by, inter alia, the Committee on Reform of Federal Criminal Laws of the American Bar Association, Subcommittee Criminal Code Hearings, Part VII, 5817.))

((/247/ McKinney's N.Y. Crim. Law Section 400.30 (1969).))

The fine levels in subsection (b) for felonies and misdemeanors committed by individuals and for felonies committed by organizations, are considerably higher than the levels provided in S. 1437 as passed by the Senate in the 95th Congress. In addition, subsections (b)(1)(A) and (b)(2)(A) were amended in the 96th Congress to provide the same maximum fine for a misdemeanor that results in the loss of life as for a felony. These amendments are designed to offset the deletion in the 96th Congress of section 2201(c) in S. 1437, which provided that, as an alternative to the maximum fines set forth in subsection (b), "(a) defendant who has been found guilty of an offense through which pecuniary gain was directly or indirectly derived, or by which bodily injury or property damage or other loss was caused, may be sentenced to pay a fine that does not exceed twice the gross gain derived or twice the gross loss caused, whichever is the greater." The business community expressed concerns that the standard for determining the amount of a fine under that provision could result in an unwieldy sentencing proceeding that would be virtually equivalent to a trial on the question of damages. The Committee concluded that an increase in the maximum fine levels for serious offenses could assure that a fine could be imposed that would usually reach the defendant's illgotten gains while avoiding undue complexity in the sentencing hearing. Of course, in a situation in which, for example, the defendant obtained millions of dollars in the course of committing an offense, the provisions for an order of restitution or an order of notice to victims may be used, depending on the circumstances, in conjunction with a fine to assure that a convicted defendant cannot keep what he obtained.

It is intended by the Committee that the increased fines permitted by this section will help materially to penalize and deter white collar crime and other highly profitable crime. Certainly no correctional aims can be achieved where the maximum sentence imposable is set at such a low level that it can be regarded merely as a cost of doing business -- a cost that may in fact be more than offset by the gain from the illegal method of doing business. The need for such increased penalties is particularly apparent with regard to a corporate defendant which today can often divide the minor burden of payment among its many stockholders, or pass it on to consumers as a cost of doing business, with the result that lesser penalties may not be felt either by the corporation or by its multiple owners. ++EP++

While the Committee believes that the increased fine levels will be of particular importance in the white collar crime area, it does not mean to imply that fines are not an important aspect of sentencing in other areas as well. It is hoped that the sentencing provisions will lead to more creative use of sentencing options such as, for example, the use of a sentence to pay a fine in installments over a period of time for minor offenders who may not be able to pay a fine in a lump sum. Such a sentence would be appropriate, for example, in the case of a defendant without current assets who is convicted of a minor offense that does not warrant imprisonment but that nevertheless must be met by some clear form of punishment and deterrence.

In considering the characteristics of the defendant, the court is specifically required to consider the ability of the defendant to pay a fine in the amount and manner contemplated in view of the defendant's income, earning capacity, and financial resources, and, if the defendant is an organization, the size of the organization. The court is also required to consider the burden that the fine will place on the defendant and on his dependents, any payment of restitution by the defendant or any requirement that the defendant make reparation to the victim, the impact of the fine on the future financial stability of the defendant, any effort by an organizational offender to discipline the persons responsible for the offense or ensure against recurrence of the offense, and any other equitable considerations that are pertinent.

The maximum fine levels are sufficiently high to permit considerable flexibility in tailoring the fine level to the situation in a particular case. While it is not intended that a fine for a solvent individual be so high as to force him into a lifetime of poverty, if a defendant is wealthy and the court finds that a high fine is necessary to serve the purposes of sentencing, it should not be reluctant to sentence the defendant to pay a high fine. On the other hand, the court need not avoid the use of a sentence to pay a fine against an individual who is not wealthy since the bill would permit installment payments of a fine. In some cases, the most appropriate sentence might be, for example, the payment of a fairly substantial fine in installments of a specified amount out of each pay check over a period of time.

The requirement that the court, in assessing the ability of a defendant to pay a fine, consider any payment of restitution by the defendant or any requirement that the defendant make restitution to the victims of the offense is not intended necessarily to result in the court's avoiding imposition of a fine that might otherwise be imposed or reducing a fine by the amount of restitution to be paid. Either of these results might, however, be appropriate in a particular case, depending upon the effect of payment of restitution upon the defendant's ability to pay a fine and upon the purposes of sentencing to be served by requiring payment of a particular fine. Of course, if the defendant has, prior to sentencing made reparation or made arrangements to make reparation to the victims of his offense, this will have an effect on his financial resources which should be taken into account in assessing the ability of the defendant to pay a fine, and may also alleviate somewhat the need to impose a high fine for purposes of punishment and deterrence.

The considerations in setting fine levels can obviously be quite complex, and they warrant careful attention by the Sentencing Commission in formulating sentencing guidelines and policy statements to aid in imposing sentence.

Subsection (b) was included for the first time in S. 1630 in the 97th Congress. It provides that, unless otherwise expressly permitted, the aggregate of fines that may be imposed on a defendant at the same time for offenses that arise from a common scheme or plan and that do not cause separable or distinguishable kinds of harm or damage, is twice the amount imposable for the most serious offense. The provision was added in response to concerns that there might be some offenses, particularly regulatory offenses, ++EP++ where an ongoing pattern of conduct constituted numerous minor offenses, with the result that the defendant might be subject to an unjustifiably high maximum fine.

Subsection (c) makes clear that, even though a fine imposed by the sentencing judge may be modified or remitted pursuant to section 3573, corrected pursuant to section 3742, or appealed and modified pursuant to section 3742 if it is outside the guidelines, the judgment of conviction that includes a fine is final for all other purposes. This notes the provisional nature of the sentence pending any later modifications authorized by the bill while making clear that the conviction is otherwise final.

Subsection (d) permits the court to authorize payment within a specified period of time or in installments. Such flexible payment schedules are now specifically authorized in the Federal system for a fine imposed as a condition of probation, /249/ and are authorized in many States. /250/ Clearly, if the defendant can earn the money to pay a certain fine over a period of time, there seems little justification for choosing imprisonment or a lesser fine if the higher fine would otherwise be clearly the most appropriate sentence.

((/249/ 18 U.S.C. 3651.))

((/250/ National Commission on Reform of Federal Criminal Laws, II Working Papers 1285 (1970).))

Subsection (e) prohibits imposition, at the time the sentence to pay a fine is imposed, of an alternative sentence to be served if the fine is not paid. If the defendant fails to pay his fine, the court may determine the remedy after the nonpayment and after an inquiry into the reasons for it. /251/ If, for example, nonpayment has occurred because changes in the defendant's financial circumstances have made payment an undue financial burden, it may be necessary to adjust the amount of the fine pursuant to the provisions of section 3573. If, on the other hand, the defendant is able to pay the fine but chooses to ignore his legal obligation to pay it, the provisions of proposed subchapter B of chapter 229 regarding collection of fines may be utilized to collect the fine.

((/251/ This is in opposition to the existing statute, 18 U.S.C. 3565, but in line with constitutional requirements. See Williams v. Illinois, supra note 248. There is no constitutional prohibition against imposing a new sentence, including a sentence to imprisonment in some circumstances, in the event a fine is not paid, even if the non-payment is without fault on the defendant's part, see Bearden v. Georgia, . . . U.S. . . . (decided May 24, 1983), but the Committee has not incorporated such procedure into the provisions of this bill.))

Subsection (f) specifies that, if an organization is fined, it is the duty of each of the organization's employees or agents who is authorized to make disbursement of the organization's assets to pay the fine from organization assets. This provision is designed to assure that a corporation will not be able to escape or delay liability by means of obfuscating the nature of its structure. /252/ The subsection also precludes the payment of a fine imposed on an agent or shareholder of an organization from assets of the organization unless such payment is expressly permissible under applicable State law. The purpose of the exception is simply to recognize that the governing of internal corporate operations is appropriately a matter for the law of the State of incorporation. Most States, the ++EP++ Committee understands, carefully circumscribe indemnification for fines.

((/252/ The Committee had considered including specifically in this subsection a reference both to the disbursing officers of the organization and their superiors." It was decided, however, that such a reference to "superiors" would be redundant since whatever authority a disbursing officer or cashier would have, would also be within the authority of every ndividual from his immediate superior through the chief executive officer.))

The term "expressly permissible" is intended to distinguish between situations in which State statutes or court decisions authorize indemnification and those in which State law prohibits it or is silent. The court's finding is to extend only to that issue. If indemnification is authorized, State law governs the manner of determining whether it is proper in a particular case.

Subsection (b) permits the judge to enter an appropriate order if the circumstances warrant relief. Of course, the considerations set forth in section 3572(a) for the setting of the initial fine and its time and method of payment are equally applicable to a determination whether a remission of the fine or a change in the time or method of payment is warranted.

These provisions allow the reasonable implementation of the underlying principles of this chapter, as suggested by the American Bar Association, /256/ the Model Penal Code, /257/ and several State statutes.

((/256/ ABA Standards Relating to the Administration of Justice, Sentencing Alternatives and Procedures, Section 18-7.4 (1979).))

((/257/ Model Penal Code Section 302.3 (P.O.D. 1962).))

Both require notice and a hearing with rights of counsel, confrontation, and compulsory process if application of the special offender sentence is sought by the prosecutor, and a sentence pursuant to the provisions may be appealed by the defendant or the government. /259/

((/259/ See United States V. DiFrancesco, 449 U.S. 117 (1980); United States V. Neary, 552 F.2d 1184 (7th Cir. 1977); United States V. Stewart, 531 F.2d 326 (6th Cir. 1976); United States V. Ilacqua, 562 F.2d 399 (6th Cir. 1977), cert. denied, 435 U.S. 906 (1978).))

A defendant sentenced to a term of imprisonment in excess of one year is eligible for release on parole during at least the last two-thirds of the sentence. The time at which a prisoner is eligible for release on parole is determined pursuant to the provisions of 18 U.S.C. 4205, which provides three possible actions by the sentencing judge that will affect a convicted defendant's parole eligibility date. First, if the judge specifies no parole eligibility date, a prisoner sentenced to a term of imprisonment that exceeds one year will be eligible for parole under 18 U.S.C. 4205(a) after serving one-third of the term or ten years, whichever is less. Second, under 18 U.S.C. 4205(b)(1), the judge may specify a time for parole eligibility that occurs before the time that would apply under 18 U.S.C. 4205(a). Third, under 18 U.S.C. 4205(b)(2), the judge may specify that the defendant will be immediately eligible for parole, and specify only the maximum term of imprisonment. /260/

((/260/ In addition to the parole eligibility provisions for regular adult offenders, current law contains a number of specialized parole eligibility requirements. Those for youth offenders and young adult offenders included in 18 U.S.C. 5017 specify that a defendant sentenced to imprisonment under one of those provisions is eligible for parole immediately and must be released on parole at least two years before expiration of sentence, and those relating to persons sentenced under title II of the Narcotic Addict Rehabilitation Act in 18 U.S.C. 4254 specify parole eligibility after six months.))

In addition, the Parole Commission has in recent years used parole guidelines that recommend an appropriate length of time to be spent in prison by a defendant who was convicted of a particular crime and who has a particular history and characteristics. /261/

((/261/ The parole guidelines appear in 28 CFR Section 2.20.))

As presently structured, the laws concerning the imposition of a term of imprisonment and the determination of a date for parole eligibility often are not only incompatible but also work to promote disparity and lack of certainty in the criminal justice system. If a sentencing judge wishes to assure that he has a high degree of control over the time a defendant will actually spend in prison, he must not only determine what that period of time is, but must also evaluate the effect that the parole eligibility statute and the parole guidelines will have on the sentence that he imposes. If, for example, a judge believes that a defendant should spend 20 months in prison, less good time, for a robbery offense that carries a maximum term of imprisonment of 15 years, /262/ committed under mitigating circumstances, he could achieve that result under current law by sentencing him to exactly 20 months imprisonment, but could achieve the result only because the existing parole guidelines do not recommend parole during such a short period. If, instead, he tried to achieve that result by sentencing the defendant to 60 ++EP++ months in prison, with eligibility for parole in one-third that time pursuant to 18 U.S.C. 4205(a), in the belief that most prisoners are released on parole at their parole eligibility date, the result would probably be that the defendant would spend at least 24 months in prison, the lowest period provided for robbery in the parole guidelines.

((/262/ See, e.g., 18 U.S.C. 2111 and 2112.))

Only if the Parole Commission agreed with the judge that there were particular mitigating circumstances not taken into account in the guidelines would the defendant serve the length of time that the judge intended. /263/ On the other hand, if the judge thought the defendant should spend five years in prison, he would have to sentence the defendant to a 15-year term without early parole eligibility in order to assure that operation of the parole guidelines would not result in an earlier release from prison than the judge intended. /264/ If the judge thought the defendant should serve seven years in prison, he could not control that result at all; such a sentence exceeds any period recommended in the parole guidelines for the offense of robbery (except for multiple offenses) and exceeds any period for which the judge could make the defendant ineligible for parole.

((/263/ It should be noted that even if the defendant who was sentenced to 60 months in prison had been made eligible for parole either at a designated time less than one-third the sentence or immediately upon commencement of sentence pursuant to 18 U.S.C. 4205(b), the application of the parole guidelines to the defendant usually would not be altered regardless of the judge's (usually unstated) purpose in specifying early parole eligibility.))

((/264/ While the parole guidelines do provide that the worst two groups of offenders who commit robbery should spend from 48 to 72 months in prison, the Parole Commission's conclusions as to which prisoners would fall within those groups might differ from those of the sentencing judge.))

Thus, sentencing judges and the Parole Commission second-guess each other, often working at cross-purposes. The argument that early release on parole should be retained to help alleviate judicial sentencing disparity fails to take into account the fact that it is the very availability of such release that helps to create that disparity. The judges are attempting to apply their individual sentencing philosophy to control the true sentence of the defendant, while the Parole Commission is attempting to alleviate the resulting disparity. Obviously neither is successful under current law. The problem is compounded by the fact that the judges do not generally state reasons for their sentences or the lengths of time they believe defendants should actually spend in prison, effectively precluding the Parole Commission from evaluating the judges' views, to the extent it might find them pertinent, as to the influencing factors in particular cases.

3. Provisions of the bill, as reported

Proposed 18 U.S.C. 3581(a) states the general rule that all individual offenders, regardless of the type of offense committed, may be sentenced to a term of imprisonment. /265/ This differs slightly from the approach taken by the National Commission in that the Commission's sentencing provisions did not provide for imprisoning persons committing the lowest class of offenses. /266/ The Committee is of the belief that a very short term (five days) of imprisonment is appropriate for some offenders who are found to have committed ++EP++ infractions since, inter alia, the shock value of a brief period in prison may have significant special deterrent effect.

((/265/ That rule is subject to limited exceptions. If an offense is not punishable under current law by a term of imprisonment, it will not be punishable by imprisonment under proposed 18 U.S.C. 3559.))

((/266/ National Commission Final Report, supra note 1, Section 3201.))

Subsection (b) sets forth nine classes of offenses. /267/ There are five felony classes with authorized terms of imprisonment ranging from life imprisonment to three years; three misdemeanor classes with maximum terms ranging from one year to thirty days; and the aforementioned infraction category carrying a maximum of five days. This categorization of offenses accords fairly closely with the range and number of categories adopted in several recent State codifications, and, except for the addition of a three-year felony and a six-month misdemeanor, accords closely with the recommendation of the National Commission. /268/

((/267/ Proposed 18 U.S.C. 3559 specifies how these grades apply to offenses that specify a maximum term of imprisonment rather than a grade.))

((/268/ The National Commission in its Final Report proposed generally higher terms of imprisonment for felonies since it retained parole; it proposed a supergrade category of felony permitting life imprisonment (Section 3601); three other classes of felonies, entailing imprisonment for thirty, fifteen and seven years (Sections 3002(1); 3201(1)); two categories of misdemeanors, carrying one year of imprisonment and thirty days' imprisonment (Sections 3002(2); 3201(2)); and one infraction category (Section 3002(3)). Under the Commission's proposed formulation, with the lowest felony carrying a maximum of seven years, many offenses presently carrying two to five years maximum prison terms would either have to be upgraded to six-year felonies or reduced to one-year misdemeanors. To avoid a six-fold jump in potential penalty between one offense category and the next higher category, the Committee felt it appropriate to include a three-year felony, in accord with the recommendation of the cognizant committee of the American Bar Association that there not be a gap in possible maximum sentences from a one-year maximum to a maximum several times as high. Subcommittee Criminal Code Hearings, Part VII, at 5816. Similar considerations dictated the inclusion of a six-month misdemeanor.))

It must be remembered that the terms set forth are the maximum periods for which a judge is authorized to sentence an offender in each such category; they represent the Committee's judgment as to the greatest period the Congress should allow a judge to impose for an offense committed under the most egregious of circumstances. It should also be remembered that the Sentencing Commission will be promulgating guidelines that will recommend an appropriate sentence for a particular category of offender who is convicted of a particular category of offense and that the guidelines would reserve the upper range of the maximum sentence for offenders who repeatedly commit offenses or those who commit an offense under particularly egregious circumstances. /269/ It is expected, for example, that the ordinary sentence imposed for a Class C felony will be considerably less than the twelve-year maximum authorized. This subsection is designed simply to provide a maximum limit on the broad range within which the Sentencing Commission and the judges are to operate. The subsection is no more intended to indicate the actual sentence a judge is expected to impose in each case than are the analogous provisions of current Federal statutes that also customarily set forth only the maximum limit on the judge's discretion. Further, for the first time in Federal criminal law, the sentencing judge will be sentencing within the maximum permissible term of imprisonment after consideration of sentencing guidelines that will recommend the top of the possible sentencing ++EP++ range only for the most egregious cases, and the defendant will be able to obtain appellate review of the sentence if it exceeds the guideline range applicable to him. /270/

((/269/ Proposed 28 U.S.C. 994(h) requires that the guidelines specify a sentence at or near the maximum provided in proposed 18 U.S.C. 3581(b) for a third conviction of a crime of violence or drug trafficking offense. Proposed 28 U.S.C. 994(i) requires that the guidelines specify a substantial term of imprisonment for other specific categories of very serious offenses. See Subcommittee Criminal Code Hearings, at Part XI, at 7814 (statement on behalf of the National League Aid and Defenders' Association); ABA Standards Relating to Sentencing Alternatives and Proceedings, Section 18-2.1(e) (Second Edition Tentative Draft 1979).))

((/270/ See proposed 18 U.S.C. 3742. There are two specialized provisions for appellate review of a sentence in current law: 18 U.S.C. 3576, relating to review of a sentence as a dangerous special offender, and 21 U.S.C. 849(h), relating to review of a dangerous special drug offender.))

A sentence imposed by a judge pursuant to section 3581 will represent the actual period of time that the defendant will spend in prison, except that a prisoner, after serving one year of his term of imprisonment, may receive credit at the end of each year of up to 36 days per year toward service of his sentence if he satisfactorily complies with the institution's rules. /271/ The use of such "determinate" sentences, as noted earlier, represents a substantial departure from the sentencing philosophy on which current law is based. At the time the original parole statutes were drafted a judicial sentence was to represent only the maximum term that a defendant was to remain incarcerated, and the role of the Parole Commission was to determine when in the course of that incarceration the defendant had become sufficiently rehabilitated to be safely returned to society. While -- for the reasons stated previously -- the rehabilitation model is no longer the basis of the parole release decision, the theory on which it is based still pervades the existing Federal sentencing statutes. Under current law, if a judge sentences a defendant to a term of imprisonment that exceeds one year in length, that sentence will always result in the prisoner's being eligible for parole after serving one-third of the term, or less if the judge so specifies. In no case can the judge specify that, for example, a defendant should serve two years in prison and then be released for a transitional period of supervision. This is true even though logically the attributes of the entire sentence could be set at the time of sentencing -- the factors routinely considered today by the Parole Commission in setting release dates /272/ relate entirely to information known at the time of sentencing. /273/

((/271/ See proposed 18 U.S.C. 3624(b).))

((/272/ The "salient factor score" set forth in 28 C.F.R. Section 2.20, provides for consideration by the Parole Commission, in determining whether and when to release a prisoner on parole, of the number of prior adult or juvenile convictions and incarcerations of more than 30 days, the age at time of committing the current offense, recent period free of incarceration, whether the defendant was on parole or probation, or in confinement or escaped, at the time the offense was committed, and any history of heroin or opiate dependence.))

((/273/ Only in some of those cases in which a hearing examiner sets a parole release date outside the Parole Commission guidelines, or in which a prisoner has a record of serious institutional rules violations, or in which there has been superior program achievement, may factors not known at the time of sentencing affect the release date. Hoffman and DeGostin, Parole Decision Making: Structuring Discretion, United States Board of Parole Research Unit, Report 5, Table II, at 11 (June 1974), set out in the Subcommittee Criminal Code Hearings, Part XIII, at 9217. In addition, 28 C.F.R. Section 2.6 provides that, "(w)hile neither a forfeiture of good time nor a withholding of good time shall bar a prisoner from receiving a parole hearing, Sec. 4206 of Title 18 of the United States Code permits the Commission to parole only those prisoners who have substantially observed the rules of the institution."))

The Committee is of the view, in light of the reasons that have been reviewed previously, that the indeterminate sentence no longer has a role to play in the context of a guideline sentencing system. The guideline sentencing system must totally supplant the indeterminate sentencing system in order to be successful. Accordingly, all sentences to imprisonment under the new system are determinate. ++EP++

It is the expectation of the Committee that determinate sentences imposed under this new sentencing system will not, on the average, be materially different from the actual times now spent in prison by similar offenders who have committed similar offenses. Logic and reason on the part of the Sentencing Commission, as reviewed and accepted by the Congress, will control the length of the recommended terms, but historical averages will be examined during their development. /274/ There will be some logical changes from historical patterns, of course, as in the case of serious violent crimes or white collar offenses for which plainly inadequate sentences have been imposed in the past, and in the case of minor offenses for which generally inappropriate terms of imprisonment have been imposed in the past, but for the most part the average time served should be similar to that served today in like cases. Certainly the guidelines will remove from the criminal justice system the artificially high terms of imprisonment that are imposed today to take into account the effects of the parole laws on the time the defendant will serve. Both the offender and society will benefit. /275/

((/274/ See proposed 28 U.S.C. 994(m).))

((/275/ The Sentencing Commission is required to take into account, inter alia, the nature and capacity of the existing penal and correctional facilities and services, as well as the purposes of sentencing, when it promulgates the sentencing guidelines. Proposed 28 U.S.C. 994(g). This requirement itself will help to avoid any unintended change in the actual median time spent in prison by Federal prisoners.))

It also does not permit the judge in any case in which the term of imprisonment exceeds one year to make the defendant ineligible for parole for a longer period than one-third of his term of imprisonment.

There are several specialized sentencing statutes that provide some statutory guidance concerning the factors to be considered in imposing a sentence under their provisions. These statutes relate to dangerous special offenders, dangerous special drug offenders, youth and young adult offenders, and drug addicts.

Detailed criteria for a sentence to a term of imprisonment longer than that which would ordinarily be provided for many felonies are provided in 18 U.S.C. 3575 for "dangerous special drug offenders" and in 21 U.S.C. 849 for "dangerous special drug offenders." The criteria for the two classes of offenders are parallel, except that the dangerous special offender provisions may apply to any felony if the criteria are met, while the dangerous special drug offender provisions apply only to felonies involving controlled substances. In order for the dangerous special offender or dangerous special drug offender sentencing provisions to apply to a defendant, he must be found to be both "dangerous" and a "special" offender because he fits one of three classifications set forth in the statute. A defendant is considered "dangerous" if a period of confinement for a felony that is longer than the maximum provided in the statute defining the felony "is required for the protection of the public from further criminal conduct by the defendant." /279/

((/279/ 18 U.S.C. 3575(f); 21 U.S.C. 849(f).))

The dangerous special offender provisions apply to an offender who (1) was previously convicted of two or more separate felonies, and has either been convicted of the last one within five years of the current offense or been released from prison, on parole or otherwise, on one of the offenses within the past five years; (2) committed the charged felony as part of a pattern of criminal conduct which generated a substantial source of his income and in which he manifested special skills or expertise; or (3) committed the felony as part of, or in furtherance of, a conspiracy with three or more other persons in which the offender played or had agreed to play a leadership role, or in which he used, or had agreed to use, bribery or force. The classifications of dangerous special drug offenders are substantially the same, except that they relate only to persons charged with controlled substances felonies, and where the characterization of the offense is dependent on previous convictions, these convictions are for felonies involving controlled substances. Under either statute, the applicability to the defendant of the special offender classification must be established by a preponderance of the information, including information from the trial, the sentencing hearing and the presentence report.

The Federal Youth Corrections Act /280/ provides that a person who is under 22 years of age at the time of conviction may be sentenced under the Act under specified circumstances. Section 5010(d) of title 18 provides that a youth offender may be sentenced to a regular adult sentence if the court finds that he "will not derive ++EP++ benefit from treatment" under the Act.

((/280/ 18 U.S.C. 5001 et seq.))

This provision has been interpreted by the Supreme Court to require that the sentencing court consider whether to sentence a youth offender pursuant to the Act but not to require that the court state reasons for deciding that it will or will not impose sentence under the Act. /281/ If the court does sentence a youth offender under the Act, it may either sentence him to an indeterminate sentence for purposes of "treatment and supervision" /282/ or, if it finds "that the youth offender may not be able to derive maximum benefit from treatment * * * prior to the expiration of six years," may sentence him to the custody of the Attorney General "for treatment and supervision" pursuant to the provisions of the Federal Youth Corrections Act to any "further period that may be authorized by law for the offense or offenses." /283/

((/281/ United States V. Dorszynski, 418 U.S. 424 (1974).))

((/282/ 18 U.S.C. 5010(b).))

((/283/ 18 U.S.C. 5010(c).))

In both cases, the defendant is immediately eligible for parole. /284/ In the case of an indeterminate sentence pursuant to 18 U.S.C. 5010(b), the defendant may spend no more than four years in prison and must be discharged unconditionally from supervision on or before six years from the date of his conviction. /285/ If he is sentenced pursuant to 18 U.S.C. 5010(c) to a sentence that would apply to a regular adult offender, the defendant must be released on parole at least two years before the expiration of his sentence and must be released from supervision by the expiration of his term. /286/

((/284/ 18 U.S.C. 5017(a).))

((/285/ 18 U.S.C. 5017(c).))

((/286/ 18 U.S.C. 5017(d).))

If a defendant is a "young adult offender" between the ages of 22 and 26 at the time of conviction, the judge may, after considering his previous criminal record and record of juvenile delinquency, his background and capabilities, his physical and mental health, and "such other factors as may be considered pertinent," sentence him pursuant to the Federal Youth Corrections Act if he finds "that there are reasonable grounds to believe that the defendant will benefit from treatment" under the Act. /287/ Unlike cases involving offenders under the age of 22, /288/ the sentencing judge is not required to consider imposing sentence pursuant to the Federal Youth Corrections Act; rather, the sentencing judge has the option of imposing sentence pursuant to that Act in his discretion.

((/287/ 18 U.S.C. 4216.))

((/288/ See United States V. Dorszynski, supra note 281, which requires the judge to find that an offender under the age of 22 will receive no benefit from sentencing under the Youth Corrections Act, but does not require that the judge state reasons for his conclusion.))

Finally, title II of the Narcotic Addict Rehabilitation Act /289/ provides that, if the court finds that an "eligible offender" /290/ is an addict and "is likely to be rehabilitated through treatment," the court must sentence the defendant to the custody of the Attorney General for treatment unless the Attorney General certifies that ++EP++ adequate facilities and personnel for such treatment are not available. /291/

((/289/ 18 U.S.C. 4251 et seq.))

((/290/ "Eligible offender" is defined in 18 U.S.C. 4251(f) to include any individual convicted of an offense against the United States except an individual whose conviction is for a crime of violence, or whose conviction is for trafficking in narcotic drugs (unless the offense was committed primarily to support the defendant's addiction), or against whom a felony charge is pending, or who is on probation or parole, or who has been convicted of a felony on two or more prior occasions, or who has previously been committed for narcotic addiction on three or more occasions.))

((/291/ 18 U.S.C. 4253(a).))

Such a commitment is for an indeterminate period of up to ten years, but not "to exceed the maximum term of imprisonment" applicable to the offense. The defendant may be released on parole at any time after six months of treatment if the Attorney General recommends such release to the Board of Parole and the Surgeon General certifies "that the offender has made sufficient progress to warrant his conditional release under supervision." /292/

((/292/ 18 U.S.C. 4254.))

3. Provisions of the bill, as reported

For the first time under Federal criminal law, a court would be required, pursuant to section 3582(a), to consider specified factors prior to the imposition of a sentence of imprisonment /293/ in all cases in which a defendant was convicted of a Federal offense. The court must consider, to the extent that they are applicable, /294/ the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to provide just punishment, a deterrent effect, incapacitation, and an opportunity for rehabilitation; and the guidelines and any policy statements of the Sentencing Commission that are applicable. While judges generally consider offense and offender characteristics in determining the type and length of sentence to be imposed under current law, the listing of the factors to be considered serves to focus attention on the specific purposes of the sentencing process and to assure that adequate emphasis is given to each. Again, it should be noted that there will be cases in which incarceration would be appropriate to serve only one or two of the listed purposes of sentencing; nevertheless, if imprisonment is found to be justified for any one of the purposes, except as noted below, its imposition is authorized under this section. In such a case, whether it should be imposed when authorized is a question to be resolved after balancing all the relevant considerations.

((/293/ The factors are required to be considered in determining whether a term of imprisonment should be imposed, in determining the appropriate length of any such term, and in determining whether it should be followed by a period of supervised release. The court is also required to consider policy statements issued by the Sentencing Commission in deciding whether to make a recommendation as to the appropriate type of prison facility for the defendant. See proposed 18 U.S.C. 3621(b).))

((/294/ The phrase "to the extent that they are applicable" acknowledges the fact that different purposes of sentencing are sometimes served best by different sentencing alternatives.))

Subsection (a) specifies, in light of current knowledge, that the judge should recognize, in determining whether to impose a term of imprisonment, "that imprisonment is not an appropriate means of promoting correction and rehabilitation." This caution concerning the use of rehabilitation as a factor to be considered in imposing sentence is to discourage the employment of a term of imprisonment on the sole ground that a prison has a program that might be of benefit to the prisoner. This does not mean, of course, that if a defendant is to be sentenced to imprisonment for other purposes, the availability of rehabilitative programs should not be an appropriate consideration, for example, in recommending a particular facility. ++EP++

The Committee believes that the guidelines provide an appropriate means for embodying the same considerations which are contained in current dangerous special offender statutes. Two provisions in the directives to the Sentencing Commission are designed to be used in their place. First, under proposed 28 U.S.C. 994(i), the Sentencing Commission is specifically directed to assure that the sentencing guidelines require a substantial term of imprisonment for categories of defendants in which the defendant has an extended criminal history, is a career criminal, or is engaged in racketeering in a managerial or supervisory capacity, or committed a violent felony while on release pending trial, sentence, or appeal from another felony charge or conviction. Second, proposed 28 U.S.C. 994(h) requires the sentencing guidelines to specify a term of imprisonment at or near the statutory maximum for a third conviction of a felony that involves a crime of violence or drug trafficking.

The bill, as reported, also drops the special sentencing provisions for youth offenders, young adult offenders, and drug addicts. Under the bill, as reported, the Sentencing Commission is required to consider what impact, if any, such characteristics of the defendant as his age and his physical condition, including drug dependence, should have on the appropriate sentence. /295/ By including such considerations in the formulation of sentencing guidelines, uniform treatment of the characteristics for all defendants similarly situated will be promoted. In addition, the converse situation is also recognized; the bill places in 28 U.S.C. 994(j) a recognition that a young first offender, who has not committed a serious crime, ordinarily should not receive a sentence to imprisonment. The Committee believes that this approach to such factors as youth is far preferable to the approach in current law. While the Bureau of Prisons has found that it is better from the standpoint of both prisoners and the criminal justice system to have prisoners in different age groups in the same institution, providing separate wings within an institution for youthful offenders, some courts have recently held that the Youth Corrections Act requires that offenders sentenced under the Act must be housed in a manner that separates them entirely from adult offenders. /296/ The Bureau of Prisons thus provides three separate institutions for these offenders despite its misgivings concerning the wisdom of doing so, both because the limited number of institutions for such offenders causes most of them to be incarcerated far from home and because an institution containing only youthful offenders tends to have more discipline problems than one with a variety of age groups. /297/ The Committee shares these concerns and believes that these provisions should be deleted. The directive to the Sentencing Commission contained in proposed 28 U.S.C. 994(d) to consider the effect that age should have on sentences is sufficient to assure such specialized treatment as is desirable for this category of offenders. ++EP++

((/295/ Proposed 28 U.S.C. 994(d).))

((/296/ Watts V. Hadden, 651 F.2d 1354 (10th Cir. 1981); Dancy v. Arnold, 572 F.2d 107 (3d Cir. 1978); Brown v. Carlson, 431 F. Supp. 775 (W.D. Wisc. 1977). But see, Outing v. Bell, F.2d 1144 (4th Cir. 1980).))

((/297/ See Crime Control Act Hearings (statement of the Department of Justice, pp. 19-21).))

Subsection (b) is added to make clear that a judgment of conviction is final even though it includes a provisional sentence that is subject to modification as described in subsection (c), subject to correction pursuant to proposed 18 U.S.C. 3742, or, if the sentence is outside the guidelines, subject to appeal and modification pursuant to proposed 18 U.S.C. 3742.

Subsection (c) provides that a court may not modify a sentence except as described in the subsection. The subsection provides "safety valves" for modification of sentences in three situations.

The first "safety valve," applies, regardless of the length of sentence, to the unusual case in which the defendant's circumstances are so changed, such as by terminal illness, that it would be inequitable to continue the confinement of the prisoner. In such a case, under subsection (c)(1)(A), the Director of the Bureau of Prisons could petition the court for a reduction in the sentence, and the court could grant a reduction if it found that the reduction was justified by "extraordinary and compelling reasons" and was consistent with applicable policy statements issued by the Sentencing Commission. /298/ (Subsection (c)(1)(B) simply notes the authority to modify a sentence if modification is permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.)

((/298/ This is similar to the authority of the Bureau of Prisons in 18 U.S.C. 4205(g) to file a motion with the court at any time to reduce the minimum term of a prisoner so that he can be paroled.))

Another "safety valve," set forth in subsection (c)(2), permits the court to reduce a term of imprisonment, upon motion of the defendant or the Director of the Bureau of Prisons or on its own motion, if the term was based on a sentencing range in the applicable guideline that was lowered by the Sentencing Commission after the defendant's sentence was imposed and if such a reduction is consistent with applicable policy statements of the Sentencing Commission.

The value of the forms of "safety valves" contained in this subsection lies in the fact that they assure the availability of specific review and reduction of a term of imprisonment for "extraordinary and compelling reasons" and to respond to changes in the guidelines. The approach taken keeps the sentencing power in the judiciary where it belongs, yet permits later review of sentences in particularly compelling situations.

Subsection (d) permits the court to order, in conjunction with a term of imprisonment, that a defendant convicted of a felony violation of the laws relating to organized crime or drug offenses, not associate or communicate with a specified person if there is probable cause to believe that association or communication with the person is for the purpose of continuing the defendant's participation in an illegal enterprise. The order may be issued at the time of sentencing or may be issued at a later date if the Bureau of Prisons or the United States attorney requests. The order may not extend to association or communication with the defendant's counsel. The purpose of the provision is to prevent the defendant from continuing his illegal activities from his place of confinement. The provision is similar in concept to the provision of section 3563(b)(7) that permits the court to order as a condition of release probation or supervised ++EP++ that a defendant not associate unnecessarily with a specified person.

The provision is not intended to limit in any way the current authority of the Bureau of Prisons to take appropriate measures to control similar or related activities on the part of prisoners or otherwise to impose reasonable restrictions on association or communication by prisoners. This aspect of a sentence is not referred to in the provision relating to appellate review of sentence since the concerns with limitations on communications are constitutional concerns to be decided under existing law on constitutional grounds by the courts on a case-by-case basis.

Two other points should be noted in conjunction with section 3582. First, in articulating for the first time a general philosophy of sentencing -- embodying the concepts of deterrence, incapacitation, just punishment, and rehabilitation -- the bill avoids the highly emotional past debate over whether or not there should be a general sentencing presumption either in favor of incarceration or in favor of probation. The approach taken in the bill is to avoid any general reference to either presumption and, instead, rely on the general purposes of sentencing, leaving to the specific guidelines promulgated by the Commission the issue of whether imprisonment in an individual case is appropriate or not. Second, it is, of course, apparent that the general purposes of sentencing, in and of themselves, will not solve the problem of disparity. Obviously, this section must be read in conjunction with the specific guidelines, and other provisions of the bill, which are designed to deal with the immediate practical problem of disparity.

Supervision may be discontinued before the termination of jurisdiction if, upon its own motion or motion of the parolee, the Parole Commission determines to terminate it before the statutory time. /300/ The Parole Commission is required to review periodically the need for continued supervision, /301/ and may not continue supervision for more than five years after the parolee's release on parole unless it makes a finding after a hearing "that such supervision should not be terminated because there is a likelihood that the parolee will engage in conduct violating any criminal law". /302/

((/300/ 18 U.S.C. 4211(a). Parole Commission standards for determining whether to terminate supervision early are set forth in 28 C.F.R. Section 2.43(e).))

((/301/ 18 U.S.C. 4211(b).))

((/302/ 18 U.S.C. 4211(c)(1).))

Under current law, the question whether a defendant sentenced to a term of imprisonment in excess of one year will be supervised on parole following release is dependent on whether or not the defendant is released on good time or on parole with more than 180 days remaining of his prison term. /303/ It is not dependent on whether the defendant needs supervision following release; a defendant who needs supervision may have had such a poor disciplinary record in prison that he has less than 180 days of good time; a defendant who needs no supervision may have served only one-third of an unusually long sentence.

((/303/ 18 U.S.C. 4164 and 4210(b).))

Under present law, if a parolee violates a condition of parole that results in a determination to revoke parole, the revocation has the effect of requiring the parolee to serve the remainder of his original term of imprisonment, subject to periodic consideration for release as required for any prisoner who is eligible for parole. /304/

((/304/ See 28 C.F.R. Section 2.21 (1983).))

Current law also contains two provisions that result in street supervision following confinement of a person sentenced to a period of confinement of less than a year. Under 18 U.S.C. 3651, a defendant who is convicted of an offense for which the maximum term of imprisonment is more than six months may be sentenced to a split sentence with no more than six months' imprisonment followed by probation. Under 18 U.S.C. 4205(f), the sentencing judge may specify that a defendant sentenced to between six months and one year in prison will be released as if on parole (i.e., subject to street supervision) after serving one-third of the term.

3. Provisions of the bill, as reported

This section permits the court, in imposing a term of imprisonment for a felony or a misdemeanor, to include as part of the sentence a requirement that the defendant serve a term of supervised release after he has served the term of imprisonment. Unlike current parole law, the question whether the defendant will be supervised following his term of imprisonment is dependent on whether the judge concludes that he needs supervision, rather than on the question whether a particular amount of his term of imprisonment remains. The term of supervised release would be a separate part of the defendant's sentence, rather than being the end of the term of imprisonment. If the term of supervised release is longer than ++EP++ recommended in the applicable sentencing guidelines, the defendant may appeal it under proposed section 3742; if it is shorter, the government may appeal on behalf of the public.

Subsection (b) specifies the authorized maximum terms of supervised release, with the terms ranging from a maximum of one year for a defendant sentenced for a Class E felony or for a misdemeanor, to a term of not more than three years for a defendant released after serving a term of imprisonment for a Class A or B felony. The length of the term of supervised release will be dependent on the needs of the defendant for supervision rather than, as in current law, on the almost sheer accident of the amount of time that happens to remain of the term of imprisonment when the defendant is released.

Subsection (c) specifies the factors that the judge is required to consider in determining whether to include a term of supervised release as a part of the defendant's sentence, and, if a term of supervised release is included, the length of the term. The judge is required to consider the history and characteristics of the defendant, the nature and circumstances of the offense, the need for the sentence to protect the public from further crimes of the defendant and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner, the applicable sentencing guidelines and policy statements, and the need to avoid unwarranted sentencing disparity. The Committee has concluded that the sentencing purposes of incapacitation and punishment would not be served by a term of supervised release -- that the primary goal of such a term is to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release.

Subsection (d) describes the conditions that the judge may impose on a person who is placed on supervised release. The court is required to order, as a condition of supervised release, that the defendant not commit another crime during the period of supervision. It may also order any of the conditions set forth as conditions of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(19), and any other condition it considers appropriate, if the condition is reasonably related to the history and characteristics of the offender and the nature and circumstances of the offense, the need for the sentence to protect the public from further crimes of the defendant, and the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment. Whatever conditions are imposed may not involve a greater deprivation of liberty than is necessary to protect the public and to provide needed rehabilitation or corrections programs, and must be consistent with any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a).

Subsection (e) permits the court, after considering the same factors considered in the original imposition of a term of supervised release, to terminate a term of supervised release previously ordered at any time after one year of supervised release; or, after a hearing, to extend the term of supervised release (if less than the ++EP++ maximum term was originally imposed); or modify, reduce, or enlarge the conditions of supervised release; or to treat a violation of a condition of a term of supervised release as contempt of court pursuant to section 401(3) of title 18.

The court is also empowered by subsection (e)(3) to treat a violation of a condition of a term of supervised release as contempt of court pursuant to section 401(3) of this title and to carry out the appropriate contempt proceedings and sanctions as specified in 18 U.S.C. 401. It is intended that contempt of court proceedings will only be used after repeated or serious violations of the conditions of supervised release.

In past Congresses, the legislative history of the sentencing reform proposal has contemplated use of criminal contempt as a sanction for violation of conditions of post-release supervision. The Probation Committee of the Judicial Conference urged the Committee to expressly state the availability of this sanction in the legislation to avoid confusion, and the Committee has done so.

Subsection (f) requires the court to direct the probation officer to provide the defendant with a clear and specific statement of the conditions of supervised release.

In effect, the term of supervised release provided by the bill, takes the place of parole supervision under current law. Unlike current law, however, probation officers will only be supervising those releasees from prison who actually need supervision, and every releasee who does need supervision will receive it. /305/ The term of supervised release is very similar to a term of probation, except that it follows a term of imprisonment and may not be imposed for purposes of punishment or incapacitation since those purposes will have been served to the extent necessary by the term of imprisonment. Unlike a term of probation, however, the term of supervised release is not subject to revocation for a violation. Instead, for the usual violations, the term or conditions of supervised release may be amended pursuant to subsection (e). If the violation is a new offense, the defendant may, of course, be prosecuted for the offense or held in contempt of court for violations of the court order setting the conditions of supervised release. The Committee did not provide for revocation proceedings for violation of a condition of supervised release because it does not believe that a minor violation of a condition of supervised release should result in resentencing of the defendant and because it believes that a more serious violation should be dealt with as a new offense. In the case of a serious violation, of course, the fact that a defendant is charged with a new offense committed while he was on release will be pertinent to the questions whether there is a risk of flight or danger to the community pending trial and what conditions might be imposed on his release.

((/305/ The functions of probation officers with respect to supervised release are described more fully in the discussion of proposed 18 U.S.C. 3603.))

It specifies the factors to be considered in determining whether to impose concurrent or consecutive sentences. It further provides that consecutive sentences, and any portions thereof during which the defendant is subject to early release, shall be treated as a single sentence for administrative purposes.

2. Present Federal law

There are no provisions of current law covering the contents of this section. /306/ Existing law permits the imposition of either concurrent or consecutive sentences, but provides the courts with no statutory guidance in making the choice. /307/ Terms of imprisonment imposed at the same time are deemed to run concurrently rather than consecutively if the sentencing court has not specified otherwise. /308/ Exceedingly long consecutive terms commonly are avoided through the exercise of judicial restraint. A term of imprisonment imposed on a person already serving a prison term is deemed to be concurrent with the first sentence if the first sentence is for a Federal offense, /309/ but is usually served after the first sentence if that sentence involves imprisonment for a State or local offense. /310/

((/306/ 18 U.S.C. 4161, however, does deal with aggregating sentences for purposes of good time allowances, and 18 U.S.C. 4205(a) provides in effect for aggregation of sentences for purposes of determining the date of parole eligibility.))

((/307/ See, e.g., Pereira v. United States, 347 U.S. 1 (1954), sustaining the imposition of consecutive sentences for conspiracy to commit mail fraud and that substantive offense.))

((/308/ See Borum v. United States, 409 F.2d 433 (D.C. Cir. 1967), cert. denied, 395 U.S. 916 (1969).))

((/309/ See Subas V. Hudspeth, 122 F.2d 85 (10th Cir. 1941). "Absent clear language to the contrary, it is presumed that sentences imposed on more than one offense at the same time, or at different times, will run concurrently." Id. at 87, citing United States v. Daugherty, 269 U.S. 360 and other cases.))

((/310/ See Larios v. Madigan, 299 F.2d 98, 100 (9th Cir. 1962); United States v. Harrison, 156 F. Supp. 756 (D.N.J. 1957), which states the opinion that the rule set forth in note 309 does not apply where one sentence is imposed by a State court and one by a Federal one. Id. at 760. Some courts have held that the Federal courts do not have the authority to make a Federal sentence concurrent with a State sentence already being served since 18 U.S.C. 3568 specifies that the Federal term commences when the defendant is received by Federal authorities. See, e.g., United States v. Segal, 549 F.2d 1293, 1301 (9th Cir. 1977).))

3. Provisions of the bill, as reported

Proposed 18 U.S.C. 3584(a) provides that sentences to multiple terms of imprisonment may, with one exception, be imposed to be served either concurrently or consecutively, whether they are imposed at the same time or one term of imprisonment is imposed while the defendant is serving another one. The exception is that consecutive terms of imprisonment may not, contrary to current law, be imposed for an offense described in section 1001 (Criminal Attempt) and for an offense that was the sole objective of the attempt. This limitation on consecutive sentences follows the recommendation of the National Commission. /311/ Of course, if the attempt involved plans for a complex pattern of criminal activity and the defendant was convicted of attempting, conspiring, or soliciting such a pattern of activity, the fact that he was also convicted of completing one or more, but not all, the planned offenses would not ++EP++ preclude, under the provisions of section 3584(a), the imposition of consecutive terms of imprisonment.

((/311/ See National Commission Final Report, supra note 1, Section 3204(2)(b). Proposed 18 U.S.C. 2304(a) in S. 1722, 96th Congress, also contained a bar to imposition of consecutive sentences for a criminal conspiracy or solicitation of a crime and another offense that was the sole objective of the conspiracy or solicitation. This provision has been replaced by a directive to the Sentencing Commission in proposed 28 U.S.C. 994(l) that the guidelines reflect the "general inappropriateness" of such consecutive sentences.))

The National Commission also specified that terms should not be consecutive in two other situations: that in which one offense is a lesser included offense of the other; and that in which one offense prohibits the same conduct as the other, where one statute describes the conduct generally and another statute describes the conduct specifically. /312/ The Committee has not included the first of these provisions since it generally does not favor conviction for an offense and a lesser included offense. The second situation is covered in new 28 U.S.C. 994(u) in the form of guidance to the Sentencing Commission in promulgating policy statements for sentencing.

((/312/ See National Commission Final Report, supra note 1, Section 3204(2)(a) and (c).))

Proposed 18 U.S.C. 3584(a) also codifies the rule that, if the court is silent as to whether sentences to terms of imprisonment imposed at the same time are concurrent or consecutive, the terms run concurrently unless a statute requires that they be consecutive. /313/ If, on the other hand, multiple terms of imprisonment are imposed at different times without the judge specifying whether they are to run concurrently or consecutively, they will run consecutively unless the statute specifies otherwise. This carries forward current law where both sentences are for Federal offenses, but changes the law that now applies to a person sentenced for a Federal offense who is already serving a term of imprisonment for a State offense. /314/

((/313/ See, e.g., 18 U.S.C. 924(c).))

((/314/ Thus, it is intended that this provision be construed contrary to the holding in United States V. Segal, supra note 310.))

Subsection (a) is intended to be used as a rule of construction in the cases in which the court is silent as to whether sentences are consecutive or concurrent, in order to avoid litigation on the subject. However, the Committee hopes that the courts will attempt to avoid the need for such a rule by specifying whether a sentence is to be served concurrently or consecutively. Ordinarily, under the guidelines system, if the court is sentencing for multiple offenses at the same time, the guidelines will specify an incremental penalty by which some portion of the sentence for the first offense is added to the sentence for each similar offense. /315/ Thus, for example, if the term of imprisonment recommended in the guidelines for one offense is two years, the guidelines might recommend a sentence of two and a half or three years if the defendant was convicted of three or four such offenses. On the other hand, if the defendant was being sentenced at one time for two entirely different offenses committed at different times, the judge might think that adding the guidelines sentences for the offenses together was appropriate, and specify fully consecutive sentences rather than overlapping ones. Similarly, if the defendant was convicted of one offense that was committed in the course of another offense (for example, murder committed in the course of a civil rights violation), the judge might wish to assure that there was at least some additional sentence over what the sentence would have been for only one of the offenses -- or the sentencing guidelines or policy statements ++EP++ might recommend adding the two sentences together in order to assure an appropriate sentence for all the criminal conduct of the defendant.

((/315/ Proposed 28 U.S.C. 994(l)(1).))

Subsection (b) provides that in evaluating whether the sentences should run concurrently or consecutively, the court must consider the nature and circumstances of the offenses and the history and characteristics of the offender, the need for just punishment, deterrence, incapacitation, and rehabilitation, and the sentencing guidelines and any pertinent policy statements of the Sentencing Commission. It is anticipated that in certain situations a purpose of incapacitation alone might warrant imposition of consecutive terms of imprisonment, while in other situations other purposes of sentencing might mandate the imposition of concurrent terms. Correspondingly, although similar offenses committed in the course of a single criminal episode would ordinarily be appropriate subjects for concurrent sentences, there may be instances in which the just punishment purpose of sentencing might require the imposition of distinct, separately identifiable sentences for each of the particular offenses the defendant is found to have committed. More frequently, perhaps, multiple offenses will result in a base sentence for the first offense or for the most serious offense being added to an incremental sentence for each subsequent offense. The subsection simply serves to call attention to the fact that in this sentencing determination, as in any other sentencing determination, the principal focus should be upon the purposes to be served by the sentence, and that the sentence should be structured accordingly. /316/

((/316/ The problem of determining whether to impose concurrent or consecutive terms of imprisonment is made even more acute by the fact that criminal conduct on the part of an individual often may be dissected into a number of Federal offenses as different jurisdictional bases provide authority for filing several charges for essentially the same course of conduct. For example, the mailing of fifty letters to effect a scheme to defraud technically constitutes the commission of fifty offenses for which separate charges could be brought and separate consecutive sentences imposed. This is an example of a problem in sentencing under Federal law that should be addressed by the Sentencing Commission's guidelines and policy statements.))

Subsection (c) provides that consecutive terms of imprisonment shall be treated as an aggregate for administrative purposes, thus simplying administration.

3. Provisions of the bill, as reported

Subsection (a) of proposed 18 U.S.C. 3585 provides that the sentence commences on the date that the defendant is received in custody awaiting transportation to the facility in which he is to serve his sentence, or arrives voluntarily at such facility. /317/ Current law language differs from subsection (a) by stating that a sentence begins from the date of receipt at a facility or, if he is committed to one facility to await transportation to another facility, on the date of receipt at the first facility. The Committee does not intend a different result by not specifically rerquiring that the defendant be committed to the facility from which he will be transported.

((/317/ This provision is based upon a recommendation of the Judicial Conference of the United States. See Criminal Code Hearings, Part XVI, at 11929.))

The Committee also does not intend that this provision be read to bar concurrent Federal and State sentences for a defendant who is serving a State sentence at the time he receives a Federal sentence. /318/ It should be possible for the Bureau of Prisons to use its authority to contract with State facilities to make equitable arrangements for a defendant to continue to reside in the State facility while serving part of his Federal sentence.

((/318/ See notes 310 and 314, supra.))

Subsection (b) provides that the defendant will receive credit towards the sentence of imprisonment for any time he has spent in official custody prior to the date the sentence was imposed where the custody was a result of the same offense for which the sentence was imposed or was a result of a separate charge for which he was arrested after the commission of the current offense. No credit would be given if such time had already been credited toward the service of another sentence.

Existing law provides that probation officers be "suitable" but does not include the requirement that they be "qualified" by training or background to be probation officers. Given the bill's encouragement of the use of innovative conditions of probation to meet the purposes of sentencing, different sorts of qualified probation officers should be available to the courts. The effective supervision of a convicted loan-shark, union, forger, or brokerage house, for example, would require quite different qualifications. Some of these qualifications might be found among probation officer "specialists" (who might be made available, as the need arose, to any of several courts); others might be needed so rarely as to warrant only occasional special appointments from the requisite profession to supervise the few cases in which such talents would be helpful.

Existing law also provides that probation officers serve without compensation except when it appears that the "needs of the service" require compensation. This provision has been dropped as outmoded in recognition of the importance of a qualified professional probation system. Of course, the courts may continue to use the services of qualified volunteers.

Proposed 18 U.S.C. 3602(b) carries forward the existing provision concerning the order of appointment of a probation officer.

Subsection (c) carries forward the existing provision permitting designation of a chief probation officer by the court to direct the work of all probation officers serving within the judicial district. The provision has been amended from current law to make clear that each judicial district has only one chief probation officer even if the district has more than one division or place of holding court.

The consequent awareness by criminal defendants that they may be able to avoid paying fines with relative impunity bodes ill for respect for the law.

This subchapter attempts to remedy this situation by treating criminal fine judgments like tax liens for collection purposes, thereby making available to the Attorney General summary collection procedures similar to those used by the Internal Revenue Service. Foremost among these is the power to administratively levy against the property of the defendant, which precludes disposition of the property to avoid payment and permits realization of the amount of the fine without litigation.

Rather than shifting the burden of enforcement (e.g., to the Internal Revenue Service), the Committee has elected to expand the enforcement powers of the Justice Department in order to strengthen the government's collection effort.

The United States Attorney may use this rule to obtain financial information about the debtor-defendant by oral or written depositions or by written interrogatories. In most cases, the assistance of the district court or a United States magistrate is necessary.

3. Provisions of the bill, as reported

Section 3613(a) eliminates the clerical procedures necessary to create judgment liens, by providing that the fine:

* * * is a lien in favor of the United States upon all property belonging to the person fined. The lien arises at the time of the entry of the judgment and continues until the liability is satisfied, remitted, or set aside, or until it becomes unenforceable pursuant to the provisions of subsection (b).

Language added in the 97th Congress requires the Attorney General to release the lien upon acceptance of a bond described in section 6325 of the Internal Revenue Code of 1954, or to issue a certificate of discharge of any part of the person's property subject to a lien if the Attorney General determines that the property remaining is equal in value to at least three times the amount of the fine. These provisions were added in response to business concerns that the original lien provisions could have resulted in tying up property far in excess of that needed to satisfy the lien, making it difficult to carry on normal business transactions pending payment of the fine.

Under subsection (a), a lien similar to a tax lien arises at the time of judgment, and, as subsection (c) provides, may be enforced like a tax lien through the use of administrative levy procedures. Filing under subsection (d) is necessary only to perfect the lien as against innocent third parties.

This procedure significantly alters current practices. As stated previously, 28 U.S.C. 1962 provides that:

Every judgment rendered by a district court within a State shall be a lien on the properly located in such State in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time. Whenever the law of any State requires a judgment of a State court to be registered, recorded, docketed or indexed, or any other act to be done, in a particular manner, or in a certain office or county or parish before such lien attaches, such requirements shall apply only if the law of such State authorizes the judgment of a court of the United States to be registered, recorded, docketed, indexed, or otherwise conformed to rules and requirements relating to judgments of the courts of the State.

These liens are usually only against real estate, and enforcement of the lien is often prevented by the State law restrictions noted ++EP++ above.

Further, the life of the lien is prescribed by the law of the State in which the district court sits. State laws usually require an abstract of judgment to be filed in the office of the county clerk, county recorder, or other State or county office. A small recording fee is assessed. Most of these procedural limitations and requirements are eliminated by section 3613(a).

Subsection (b) changes current law by imposing a twenty-year statute of limitations on the collection of criminal fines. Under existing law, the government's right to seek execution of a criminal sentence, including a fine, is not subject to time limitations. /327/ Currently, such cases may be closed only through payment in full, death of the debtor, or Presidential pardon. The limitation period established by subsection (b) will permit the closing of files by United States Attorneys for cases which are so old that collection of fines is unlikely. With the new enforcement tools of section 3613, it seems reasonable to conclude that if a debtor is pursued unsuccessfully for the twenty-year period, it is unlikely that additional enforcement efforts would prove fruitful. A number of unproductive clerical tasks will thus be eliminated by this provision.

((/327/ Smith v. United States, 143 F.2d 228 (9th Cir.), cert. denied, 323 U.S. 729 (1944).))

The period for collection may be extended by a written agreement entered into by the defendant and the Attorney General prior to the expiration of the period. This allowance for an extension is similar to that existing in the tax area. /328/

((/328/ See 26 U.S.C. 6501(c)(4).))

Subsection (b) also provides that the running of the twenty-year statute of limitations is to be suspended "during any interval for which the running of the period of limitations for collection of a tax would be suspended" pursuant to the following provisions of law:

(A) 26 U.S.C. 6503(b), relating to cases where the assets of the taxpayer are in the control or custody of a court in a proceeding before any United States, District of Columbia, or State court; the suspension of the limitations period is also extended for six months after the court proceeding ends;

(B) 26 U.S.C. 6503(c), relating to cases where the taxpayer is outside the United States if the absence is for a continuous period of at least six months;

(C) 26 U.S.C. 6503(f), relating to cases where the property of a third person has been wrongfully seized;

(D) 26 U.S.C. 7508(a)(1)(I), relating to cases where the person is serving in the armed forces of the United States, or in support of such forces, during time of war, or is in a hospital as a result of a combat injury, and for 180 days thereafter; and

(E) section 513 of the Act of October 17, 1940, 54 Stat. 1190, relating to cases where the person is serving in the military.

Finally, subsection (b) provides that a lien becomes unenforceable and liability to pay a fine expires upon the death of the individual fined. This is in keeping with present law, and reflects one of the ++EP++ differences between a criminal fine and a tax liability, despite their generally similar treatment in this statute.

The word "individual" is used instead of "person" to exclude organizations such as corporations from this provision, and to avoid the argument that a fine against a corporation is extinguished on the dissolution (and therefore "death") of the corporation. In such case, an existing fine will make the United States a creditor against the assets of the dissolved corporation with whatever preferences the provisions of this section grant.

Subsection (c) provides that certain sections of the Internal Revenue Code of 1954, as amended, shall:

* * * apply to a fine and to the lien imposed by subsection (a) as if the liability of the person fined were for an internal revenue tax assessment, except to the extent that the application of such statutes is modified by regulations issued by the Attorney General to accord with differences in the nature of the liabilities.

Among the provisions of title 26 incorporated by reference into section 3613, the most significant, of course, is the administrative levy power referred to previously. The following is a summary of the provisions of the tax code cross-referenced in section 3613 and make applicable to the collection of a fine:

(i) 26 U.S.C. 6323 (other than 6323(f)(4)), which contains notice and filing provisions, compliance with which is necessary to insure the validity of a tax lien against certain third persons; priority rules are also set forth;

(ii) 26 U.S.C. 6331, which authorizes the Secretary to collect a tax by levy on the property of a delinquent taxpayer if the lien has not been satisfied; as has been stated, incorporating this power into the scheme for collection of fines is the most significant change wrought by section 3613; it should be noted that 26 U.S.C. 6502, which establishes a six-year limitation period on the use of an administrative levy, has not been included in the section 3613 cross-references from title 26; thus, the twenty-year period set forth in section 3613(b) will also apply to the levy power in the area of criminal fine collection;

(iii) 26 U.S.C. 6332, which requires surrender of property subject to levy, and also provides for enforcement of the levy by civil penalty;

(iv) 26 U.S.C. 6333, which provides for demand by the Secretary of books and records relating to the property subject to levy;

(v) 26 U.S.C. 6334, which provides that certain property (including various unemployment benefits, retirement benefits, workman's compensation, and tools of a trade up to a value of $250) is exempt from levy; these exemptions are limited and standard; comparison should be made to the greater and more varied number of exceptions provided for in State laws to which the Federal government is now subject;

(vi) 26 U.S.C. 6335, which sets forth the procedure to be used in the sale of property seized pursuant to levy;

(vii) 26 U.S.C. 6336, which covers the sale of perishable goods; ++EP++

(viii) 26 U.S.C. 6337, which provides for redemption of property before sale, and, with respect to real property, redemption after sale;

(ix) 26 U.S.C. 6338, which provides that a certificate of sale is to be given to the purchaser of the property sold, and that a deed shall also be given where the property sold is real estate;

(x) 26 U.S.C. 6339, which provides that the certificate of sale and the deed are to have certain legal effects, including their use as conclusive evidence as to the regularity of the proceedings, the transfer of the right, title, and interest of the party delinquent, etc.;

(xi) 26 U.S.C. 6340, which requires records to be kept of all sales;

(xii) 26 U.S.C. 6341, which requires the Secretary to determine which expenses are to be allowed in all cases of levy and sale;

(xiii) 26 U.S.C. 6342, which sets forth the order in which the proceeds of the levy and sale are to be applied to the taxpayer's liability;

(xiv) 26 U.S.C. 6343, which authorizes the Secretary to release the levy and to return the property, or proceeds, where the property has been wrongfully levied;

(xv) 26 U.S.C. 6901, which relates to the liability of a transferee in certain instances for a tax of the transferor in order to prevent a successful transfer to avoid liability;

(xvi) 26 U.S.C. 7402, which grants jurisdiction to the Federal courts in tax collection matters;

(xvii) 26 U.S.C. 7403, which allows the filing of an action to enforce a lien, or to subject property to the payment of a tax, whether or not a levy has been made; the court may appoint a receiver to enforce the lien;

(xviii) 26 U.S.C. 7405, which allows a civil suit to be brought to recover erroneous refunds;

(xix) 26 U.S.C. 7423, which authorizes the Secretary to allow repayment to an officer or employee of the United States of the full amount of sums that may be recovered against him in any court, for any taxes collected by him or any damages recovered against him in connection with anything done by him in the performance of his official duty;

(xx) 26 U.S.C. 7424, which permits intervention by the United States in any civil action to assert any lien on property which is the subject of the suit;

(xxi) 26 U.S.C. 7425, which provides for the discharge of a lien where the United States is not a party to the suit, unless notice of the lien was filed in the place provided for by law, according to the law of the place where the property was situated; where a judicial sale discharges a lien, the United States may claim the proceeds (before their distribution is ordered) with the same priority that the lien had; the United States may also redeem real property sold to satisfy a lien, under certain conditions;

(xxii) 26 U.S.C. 7426, which provides for suits against the United States by persons claiming an interest in the property levied, where the levy is claimed to be wrongful, or where the ++EP++ person claims an interest in surplus proceeds; an exception is provided for the person against whom the tax was assessed, out of which the levy arose;

(xxiii) 26 U.S.C. 7505(a), which provides that any personal property acquired by the United States in payment of, or as security for, debts arising out of the internal revenue laws may be sold by the Secretary in accordance with prescribed regulations;

(xxiv) 26 U.S.C. 7506, which provides that the Secretary shall have charge of all real estate acquired by the United States pursuant to the internal revenue laws, and may sell or lease the property, or, if the debt has been paid, release it to the debtor;

(xxv) 26 U.S.C. 7508, which provides that certain acts relating the operation of the internal revenue laws shall be postponed because of service in a combat zone;

(xxvi) 26 U.S.C. 7602, which authorizes the Secretary to examine books and records, summon the person having the custody of books and records to appear with them, and take testimony under oath for the purpose of determining liability under the internal revenue laws;

(xxvii) 26 U.S.C. 7603, which provides for service of an administrative summons;

(xxviii) 26 U.S.C. 7604, which provides for enforcement of the summons;

(xxix) 26 U.S.C. 7605, which covers the time and place of the examination authorized in section 7602 and provides for certain restrictions on the examination;

(xxx) 26 U.S.C. 7622, which authorizes employees of the Treasury Department, designated by the Secretary, to administer oaths and affirmations and certify papers;

(xxxi) 26 U.S.C. 7701, which defines terms used throughout the rest of the title;

(xxxii) 26 U.S.C. 7805, which gives the Secretary authority to issue regulations governing enforcement of title 26, unless such authority is expressly granted to another person; and

(xxxiii) section 513 of the Act of October 17, 1940, 54 Stat. 1190, which provides for the suspension of the statute of limitations, and the collection of taxes, for persons in military service.

The Committee intends that the specialized terminology relating to tax collection in the cross-referenced provisions of the Internal Revenue Code be read, for purposes of this subchapter, as relating to the collection of a criminal fine. Thus, the term "Secretary of the Treasury" would be read as "Attorney General" and the term "tax" would be read as "fine." To carry out this intention, section 3613(c) authorizes the substitution of those terms and, in addition, authorizes the Attorney General to issue regulations for administration of fine collection which utilize appropriate terminology.

Section 3613(d) provides that a notice of a lien imposed under subsection (a) is to be considered a notice of a lien for taxes payable to the United States for the purpose of any State or local law providing for the filing of a notice of a tax lien. Because the lien created by a criminal fine is to be treated as if it were a tax lien, the ++EP++ filing provisions of 26 U.S.C. 6323 will apply to fines.

If the Attorney General declares that State or local officials have determined that such filing is unacceptable, then 28 U.S.C. 1962, which provides for the registration, recording, docketing, or indexing of Federal court judgments, will apply instead.

After considering these factors, the Bureau of Prisons may designate the place of imprisonment in an appropriate type of facility, or may transfer the offender to another appropriate facility.

In the absence of unusual circumstances, Federal courts currently will not review a decision as to the place of confinement. /334/ The Committee, by listing factors for the Bureau to consider in determining the appropriateness or suitability of any available facility, does not intend to restrict or limit the Bureau in the exercise of its existing discretion so long as the facility meets the minimum standards of health and habitability of the Bureau, but intends simply to set forth the appropriate factors that the Bureau should consider in making the designations.

((/334/ See Darcey V. United States, 318 F. Supp. 1340 (W.D. Mo. 1970).))

Proposed 18 U.S.C. 3621(c), dealing with delivery of the order of commitment to the person in charge of a penal or correctional facility, is drawn from existing 18 U.S.C. 4084 with little change.

Proposed 18 U.S.C. 3621(d), which is derived from 18 U.S.C. 3012, provides that the United States marshal shall, without charge, deliver a prisoner into court or return him to a prison facility on order of a court of the United States or on request of an attorney for the government.

Proposed 18 U.S.C. 3622(b) and (c) carry forward the provisions of 18 U.S.C. 4082(c)(2) permitting temporary release of an offender, while continuing in official detention at the penal or correctional facility, for work at paid employment or participation in a training program in the community on a voluntary basis. Section 3622(b) adds a new provision permitting temporary release to participate in an educational program, to make it clear that release may be for such purposes as pursuing a course of study in college as well as for vocational training. Subsection (c), relating to employment, modifies current law (18 U.S.C. 4082(c)(2)) by dropping the requirement that local unions be consulted and a provision barring work release where other workers might be displaced. While the Bureau of Prisons needs to be sensitive to the impact of its programs on the community, the Committee believes that it should have more flexibility than provided in current law in developing work programs in appropriate cases. The Committee believes that the long-range gain to the prisoner and to the community from a well-conceived work program will not adversely affect the community interests in adequate employment opportunities.

The Committee does not intend that work release under this subsection be expanded to the extent that it develops into a device for early release from prison. A sentence to imprisonment means confinement in an appropriate correctional facility with a program designed to meet the needs of the particular prisoner, considering the purposes of his sentence and his particular needs.

Subsection (c)(1) carries forward the provisions of current law that require that work in the community must be at the same rates and under the same conditions as for similar employment in the community involved. Subsection (c)(2) requires that the prisoner agree to pay costs incident to his detention as a condition of work release. Under current law, 18 U.S.C. 4082(c), the prisoner may be required to make such payments.

As with subsection (a), temporary release under subsections (b) and (c) is within the discretion of the Bureau of Prisons; there is no absolute right to work release or other outside privileges. /335/ Failure to remain within the confines permitted by the release, and failure to return to the corrections facility as required, would, as under current law, be treated as an escape. /336/

((/335/ See Green V. United States, 481 F.2d 1140 (D.C. Cir. 1973).))

((/336/ 18 U.S.C. 4082(d).))

First, the prisoner must have been charged in an indictment or information with a felony or have been convicted of a felony in that State. Second, the transfer must have been requested by the governor or other executive authority of the State. Next, the State must send to the Director, usually along with the request, a certified copy of the indictment, information, or judgment of conviction. Finally, the Director must find that the transfer would be in the public interest.

The last requirement of public interest places the entire transfer procedure directly within the discretion of the Director of the Bureau of Prisons. This granting of discretion to the Director follows closely section 3621(b) which permits the Bureau to designate the place of the prisoner's confinement, whether or not such place is maintained by the Federal Government. Under both statutes, the exercise of discretion by the Bureau will not be disturbed other than in exceptional circumstances. /337/ It should be noted that at no time is it necessary for the prisoner to consent to the transfer to State authorities. Moreover, generally, a prisoner can have no valid objection to a transfer. /338/

((/337/ See Little v. Swanson, 282 F. Supp. 333 (W.D. Mo. 1968).))

((/338/ Cf. Konigsburg V. Ciccone, 285 F. Supp. 585 (W.D. Mo. 1968), aff'd, 417 F.2d 161 (8th Cir. 1969), cert. denied, 397 U.S. 963 (1970).))

In addition, the Committee clearly intends that the Federal Government will not lose jurisdiction on any prisoner whose Federal sentence has not expired simply because it permits a State to take the prisoner into custody under this section. /339/ In most circumstances, however, the Federal Government may have to await the completion of State proceedings before regaining custody of the prisoner.

((/339/ See Potter v. Ciccone, 316 F. Supp. 703 (W.D. Mo. 1970).))

This section provides, and common sense dictates, that if more than one request from a State is presented with respect to a certain prisoner, the Director must determine which request, if any is to be honored, should be given priority. This procedure, too, is within the discretion of the Director.

Finally, the section provides that the costs of transferring a prisoner to a State authority will be borne by the state requesting the transfer.

First, 18 U.S.C. 4163 requires that a prisoner who has not been released earlier, for example on parole, must be released at the expiration of his sentence less credit for good conduct. /340/

((/340/ See 18 U.S.C. 4161 and 4162. Similar mechanisms for setting release dates would result for drug addicts sentenced pursuant to title II of the Narcotic Addict Rehabilitation Act, 18 U.S.C. 4251, even though the Act provides specialized sentencing for those prisoners. While the sentence is indeterminate (with a maximum of 10 years so long as it does not exceed the sentence otherwise available for the offense), with eligibility for conditional release as if on parole after six months, it is still possible that the prisoner will serve the full term of imprisonment less good time and be released pursuant to the provisions of 18 U.S.C. 4163.))

Under 18 U.S.C. 4164, if a prisoner released at the expiration of his sentence less good time has accumulated 180 days or more of good time credit, he is released as if on parole /341/ and supervised for the remaining period of his sentence less 180 days.

((/341/ In other words, the prisoner will be subject to parole supervision upon release but his release date will not be determined by the Parole Commission.))

For a prisoner whose term of imprisonment exceeds one year in length, at the same time that the Bureau of Prisons is keeping records on good time allowances, the United States Parole Commission is periodically evaluating whether the prisoner should be released on parole.

A prisoner sentenced to a term of imprisonment of not less than six months nor more than one year is released at the expiration of sentence less credit for good time, except that the judge may specify that the prisoner will be released as if on parole after serving one-third of his sentence. /342/

((/342/ 18 U.S.C. 4205(f).))

If the sentence of a regular adult offender is less than six months long, he is ineligible for either parole /343/ or receipt of good time allowance /344/ (other than industrial or meritorious good time), /345/ and his release date is set by operation of law at the expiration of his term of imprisonment less any accumulated industrial or meritorious good time. /346/

((/343/ 18 U.S.C. 4205(a) and (b).))

((/344/ See 18 U.S.C. 4161.))

((/345/ 18 U.S.C. 4162.))

((/346/ 18 U.S.C. 4163.))

There are also specialized sentencing statutes for certain young offenders for release dates to be set by the Parole Commission for all offenders who come within their terms, thus making the provisions of 18 U.S.C. 4163, relating to the release of the prisoner at the expiration of sentence less good time, inapplicable. /347/

((/347/ However, the good time statutes may still play a role in the determination of when to release these prisoners on parole since the Parole Commission considers forfeiture of good time in determining whether a prisoner has substantially complied with the rules of the institution. However, the specialized sentencing statutes do not permit a defendant sentenced under them to be released except on parole. If the prisoner is ineligible for parole on the date on which he would ordinarily be released on parole because of forfeited good time that has not been restored, his parole release date is merely extended to any period up to the time that the law requires release on parole.))

A "youth offender" /348/ given an indeterminate sentence under the Federal Youth Corrections Act /349/ is immediately eligible for parole, /350/ and must be released on parole before the expiration of four years from the date of conviction. /351/ If the youth offender is sentenced under the Federal Youth Corrections Act to a sentence ++EP++ up to that permitted for the offense for a person sentenced as an adult, /352/ he is likewise immediately eligible for parole, /353/ and must be released at least two years before the expiration of his term of imprisonment. /354/

((/348/ 18 U.S.C. 5006(d) defines a "youth offender" as a person who is under 22 years of age at the time of conviction.))

((/349/ 18 U.S.C. 5010(b).))

((/350/ 18 U.S.C. 5017(a).))

((/351/ 18 U.S.C. 5017(c).))

((/352/ 18 U.S.C. 5010(c).))

((/353/ 18 U.S.C. 5017(a).))

((/354/ 18 U.S.C. 5017(d).))

Similar requirements for release on parole apply to young adult offenders (between 22 and 26 years old at the time of conviction) whom the judge decides to sentence pursuant to the Federal Youth Corrections Act. /355/

((/355/ See 18 U.S.C. 4216.))

Proposed 18 U.S.C. 3624(a) replaces the multiplicity of release date statutes with a single provision that describes the mechanism for setting the release date. Unlike current law, two mechanisms will never be used simultaneously, thus eliminating the unnecessary confusion caused by existing requirements.

Section 3624(a) provides that a prisoner is to be released at the expiration of his term of imprisonment less any credit toward the service of his sentence for satisfactory prison behavior accumulated pursuant to subsection (b). Thus, as discussed in the introduction to this report and in connection with subchapter D of chapter 227, every sentence to a term of imprisonment will represent the actual time to be served, less good time. There will be no artificially high sentences imposed to allow for the operation of the parole system, which has no role as to prisoners sentenced under the bill.

Section 3624(a) also contains a provision which permits the Bureau of Prisons to release the prisoner on the last preceding weekday if the date of the expiration of his term of imprisonment falls on a weekend or a legal holiday. This early release is discretionary with the Bureau; nevertheless, the Bureau may not keep the prisoner incarcerated longer than his term. Therefore, if the prisoner is not released on the weekday before the weekend or legal holiday, he must be released on the Saturday, Sunday, or holiday. This subsection carries forward existing law. /356/

((/356/ 18 U.S.C. 4163.))

Proposed 18 U.S.C. 3624(b) contains the provisions concerning the earning of credit toward early release for satisfactory prison behavior. It applies only to persons who are sentenced to terms of imprisonment longer than one year, except those sentenced to life imprisonment. The duplication of effort in current law, requiring computation of good time allowances for every prisoner whose term of imprisonment is six months long or longer /357/ even if the prisoner will ultimately have his release date set by the Parole Commission, /358/ of course does not occur under the Committee's determinate sentencing system.

((/357/ 18 U.S.C. 4161.))

((/358/ The Parole Commission considers whether to release on parole any prisoner whose sentence exceeds one year in length. 18 U.S.C. 4205(a).))

Computation of credit toward early release pursuant to section 3624(b) will be considerably less complicated than under current law in many respects. Current law provides a different rate of credit for good behavior for different lengths of prison terms, /359/ ++EP++ while section 3624(b) provides a uniform maximum rate of 36 days a year for all time in prison beyond the first year.

((/359/ Under 18 U.S.C. 4161, good time allowances are credited at rates of from five to ten days a month, with three rates in between, depending upon the length of the term of imprisonment.))

In addition, current law permits forfeiture or withholding of any amount of good time that has been earned up to the time of the forfeiture or withholding, and the restoration of any amount of the forfeited or withheld good time. /360/ Section 3624(b) provides for automatic vesting of credit toward early release at the end of each year of satisfactory behavior, with the result that only a single year's worth of credit toward early release can be affected by a violation of the prison rules. /361/ Credit for the last year would be prorated.

((/360/ 18 U.S.C. 4165.))

((/361/ Of course, if a violation of rules is a criminal offense, the offense can be prosecuted in appropriate cases.))

The result of the complexity of current law provisions concerning good time allowances is to increase the uncertainty of the prisoner as to his release date, with a resulting adverse effect on prisoner morale.

Current law also probably fails to have the intended effect on maintaining prison discipline. /362/ Prisoners tend to expect that good time will be restored, and it usually is. Thus, only the prisoner who has forfeited good time that has not been restored, and who is thus ineligible for parole, is actually affected by the provisions for forfeiture.

((/362/ See Subcommittee Criminal Code Hearings, Part XIII, at 8882 and 8894.))

It is the belief of the Committee that the simplified provisions of section 3624(b) will have a positive effect on prisoner behavior. The credit toward early release is earned at a steady and easily determined rate that will have an obvious impact on the prisoner's release date. The rate is sufficiently high (approximately 10 percent of the part of a term of imprisonment that exceeds one year) to provide an incentive for good institutional behavior, yet not so high that it will carry forward the uncertainties as to release dates that occur under current law.

The new provisions will also be easier (and probably cheaper) to administer than those under current law. The credit toward early release will vest automatically unless the Bureau of Prisons determines that a violation of prison rules should result in withholding of some or all of the credit toward early release for a particular period. In addition, the Bureau of Prisons will have to determine the release dates for credit toward early release only for those prisoners whose time in prison will actually depend upon the credit they have earned, rather than also making this determination for prisoners whose release dates will be set by the Parole Commission.

It should be noted that subsection (b) permits the withholding of credit toward early release only for violation of institutional disciplinary regulations that have been approved by the Attorney General and given to the prisoner. Thus, the prisoner will be put on notice as to the actions that may result in his failure to earn credit toward early release.

Proposed 18 U.S.C. 3624(c) is new. It provides that, to the extent practicable, the last ten percent of a term of imprisonment, not in excess of six months, should be spent in circumstances that afford ++EP++ the prisoner a reasonable opportunity to adjust to and prepare for reentry into the community.

It is intended that the Bureau of Prisons have substantial discretion in determining what opportunity for reentry should be made available to each particular prisoner under the circumstances of his case. The Probation System is required, to the extent practicable, to offer assistance to prisoners at this pre-release stage. This will permit probation officers to assist prisoners in seeking employment and medical or social services as needed.

Proposed 18 U.S.C. 3624(d), relating to the allotment of clothing, transportation, and funds to a prisoner released at the expiration of his term of imprisonment, is derived from 18 U.S.C. 4281 and 4284, with several changes. The amount of money to be furnished a prisoner has been raised to a maximum of $500 rather than $100, and the provision of 18 U.S.C. 4284 for loans to prisoners has been omitted. The Committee has concluded that a small amount of financial assistance may be sufficient to get an offender started in the right direction, but that the $100 maximum sum permitted under existing law may often be inadequate. The loan provisions in existing law have not proved successful, having caused greater administrative costs and difficulties than the amount of money involved justifies. Accordingly, the total amount of money which can be given a prisoner has been raised to $500 with no provision for a small loan. The determination of the amount to be given each prisoner under section 3624(d) is to be made by the Director of the Bureau of Prisons, rather than the Attorney General, in keeping with other amendments placing day-to-day control of the operations of the Bureau of Prisons in the Director. A new provision has been added to specify that the Director shall make the determination of the amount to be given to a particular prisoner according to the public interest and the needs of the prisoner. The language has also been clarified to require the Director to provide a prisoner with some money unless he determines that the prisoner's financial situation is such that no money should be provided.

Finally, as under current law, the prisoner must be furnished transportation to one of three places: (1) the place of conviction; (2) his bona fide residence within the United States; or (3) any other place authorized by the Director of the Bureau of Prisons.

The Bureau of Prisons could, of course, provide transportation expenses rather than actually providing transportation, but the funds for transportation are to be in addition to the amount of money provided the prisoner under section 3624(d)(2) to assist him upon his release. This provision is essentially the same as that contained in 18 U.S.C. 4281, except that under that provision the determination of the place to which a prisoner would be transported was made by the Attorney General. In making this determination the Director will necessarily have to take cognizance of the terms and conditions of supervised release if such a term is imposed pursuant to section 3583.

Subsection (e) provides that a prisoner whose sentence includes a term of supervised release shall be released to the supervision of a probation officer. It also specifies that the term begins on the date of release and that it runs concurrently with any other term of supervised release, probation, or parole unless the person is imprisoned ++EP++ other than for a brief period as a condition of probation or supervised release.

Appellate courts have long followed the principle that sentences imposed by district courts within legal limits should not be disturbed. /367/ The sentencing provisions of the reported bill are designed to preserve the concept that the discretion of a sentencing judge has a proper place in sentencing and should not be displaced by the discretion of an appellate court. At the same time, they are intended to afford enough guidance and control of the exercise of that discretion to promote fairness and rationality, and to reduce unwarranted disparity, in sentencing. Section 3742 accommodates all of these considerations by making appellate review of sentences available equally to the defendant and the government, and by confining it to cases in which the sentences are illegal, are imposed as the result of an incorrect application of the sentencing guidelines, or are outside the range specified in the guidelines and unreasonable.

((/367/ An exception is contempt. See Green v. United States, 356 U.S. 165 (1958); United States v. Bukowski, 435 F.2d 1094 (7th Cir. 1970), cert. denied, 401 U.S. 911 (1971). Two additional exceptions are 18 U.S.C. 3576 and 21 U.S.C. 849(h).))

It is an anomaly to provide for appellate correction of prejudicial trial errors and not to provide for appellate correction of incorrect or unreasonable sentences. /368/ The reason given for unavailability of appellate review of sentences under current law is the fact that sentencing judges have traditionally had almost absolute discretion to impose any sentence legally available in a particular case. In doing so, the judges have not been required to state reasons for their decisions, /369/ and rarely have done so. Thus, even if appellate review of sentences were available under current law, the courts of appeals would have difficulty assessing the reasonableness of a sentencing decision since they would be unable to tell in many cases why the sentences in two apparently similar cases were different.

((/368/ See Subcommittee Criminal Code Hearings, Part VI, at 5649-53 (statement of the Hon. Marvin E. Frankel). Illegal sentences are subject to correction today pursuant to Rule 35 of the Federal Rules of Criminal Procedure.))

((/369/ See United States v. Dorszynski, 418 U.S. 424 (1974) (relating to Youth Corrections Act).))

The systematized sentencing system introduced by this bill, including the use of sentencing guidelines promulgated by a newly created Sentencing Commission, as provided in proposed chapter 58 of title 28, United States Code, should do much to eliminate unwarranted disparities in Federal sentences. Yet each offender stands before a court as an individual, different in some ways from other offenders. The offense, too, may have been committed under highly individual circumstances. Even the fullest consideration and the most subtle appreciation of the pertinent factors -- the facts in the case; the mitigating or aggravating circumstances; the offender's characteristics and criminal history; and the appropriate purposes of the sentence to be imposed in the case -- cannot invariably result in a predictable sentence being imposed. Some variation is not only inevitable but desirable.

It is expected that most sentences will fall within the ranges recommended in the sentencing guidelines. Only if a judge believes that there is an offense or offender characteristic, not adequately considered by the Sentencing Commission, that justifies a sentence different from that provided in the applicable guideline should the judge deviate from the guideline's recommendation. If the sentence ++EP++ differs from the guidelines sentence, the judge is required to state specific reasons for the sentence outside the guideline.

Because sentencing judges retain the flexibility of sentencing outside the guidelines, it is inevitable that some of the sentences outside the guidelines will appear to be too severe or too lenient.

Appellate review of sentences is essential to assure that the guidelines are applied properly and to provide case law development of the appropriate reasons for sentencing outside the guidelines. This, in turn, will assist the Sentencing Commission in refining the sentencing guidelines as the need arises. For example, if the courts found that a particular offense or offender characteristic that was not considered, or not adequately reflected, in formulation of the guidelines was an appropriate reason for imposing sentences that differed from those recommended in the guidelines, the Sentencing Commission might wish to consider amending the guidelines to reflect the factor.

Although some persons have challenged the wisdom and validity of permitting an appeal of a sentence by the government, the Committee is convinced that neither objection has merit.

It is clearly desirable, in the interest of reducing unwarranted sentence disparity, to permit the government, on behalf of the public, to appeal and have increased a sentence that is below the applicable guideline and that is found to be unreasonable. If only the defendant could appeal his sentence, there would be no effective opportunity for the reviewing courts to correct the injustice arising from a sentence that was patently too lenient. /370/ This consideration has led most Western nations to consider review at the behest of either the defendant or the public to be a fundamental precept of a rational sentencing system, and the Committee considers it to be a critical part of the foundation for the bill's sentencing structure. The unequal availability of appellate review, moreover, would have a tendency to skew the system, since if appellate review were a one-way street, so that the tribunal could only reduce excessive sentences but not enhance inadequate ones, then the effort to achieve greater consistency might well result in a gradual scaling down of sentences to the level of the most lenient ones. Certainly the development of a principled and balanced body of appellate case law would be severely hampered.

((/370/ This would be the case even if the appellate court were authorized to augment (as well as diminish) the sentence, since it is unlikely that a defendant would choose to appeal, on the basis of alleged excessiveness, a sentence deemed by the reviewing court as so inadequate as to warrant enhancement. Such a system, moreover, places an undesirable strain on the defendant's right to seek sentence review. For these reasons, inter alia, such a scheme was rejected by the Committee.))

With respect to validity, it is clear that a system, such as is provided by the reported bill, in which sentence increase is possible as a consequence of sentence review initiated by the government, is not objectionable on constitutional grounds. Title X of the Organized Crime Control Act of 1970 includes a provision (18 U.S.C. 3576) permitting a sentence imposed under the dangerous special offender provision to be increased upon appeal by the United States. /371/ The Supreme Court in United States v. DiFrancesco /372/ ++EP++ held that the authority contained in that statute for government appeal of sentence did not violate the double jeopardy clause.

((/371/ 21 U.S.C. 849 contains a similar provision as to dangerous special drug offenders.))

((/372/ 449 U.S. 117 (1980). The Committee does not view the decision in Bullington V. Missouri, 451 U.S. 430 (1981), as undermining the validity of the sentence review procedures set forth in proposed 18 U.S.C. 3742, as has been argued by the ABA. (See Criminal Code Hearings, Part XVI, at 11891-907 (letter from George C. Freeman, Jr.).) That case involved a sentencing proceeding in a death penalty case in which the jury, in a proceeding separate from the trial, found that the prosecution had not proved beyond a reasonable doubt, as required by law, that aggravating factors required to be found to exist before the death penalty could be imposed, existed. The Supreme Court, in a 5 to 4 decision, found these findings by the jury to be, in effect, a jury finding that the defendant was acquitted of the aggravating factors necessary for imposition of a death sentence. Id. at 445. The Supreme Court distinguished the proceeding from other sentencing proceedings, which it has held not to be violations of double jeopardy, by noting the prosecution's burden of establishing new facts beyond a reasonable doubt in order to assist the jury in making a determination between two alternatives, a requirement that "explicitly requires the jury to determine whether the prosecution has proved its case." Id. at 444 (emphasis in original).))

According to the Court:

The double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence. We have noted * * * the basic design of the double jeopardy provision, that is, as a bar against repeated attempts to convict with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations however, have no significant application to the prosecution's statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence. Under Section 3576, the appeal is to be taken promptly and is essentially on the record of the sentencing court. The defendant, of course, is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired. To be sure, the appeal may prolong the period of any anxiety that may exist, but it does so only for the finate period provided by the statute. The appeal is no more of an ordeal than any Government appeal under 18 U.S.C. Section 3731 from the dismissal of an indictment or information. The defendant's primary concern and anxiety obviously relate to the determination of innocence or guilt, and that already is behind him. The defendant is subject to no risk of being harassed and then convicted, although innocent. Furthermore, a sentence is characteristically determined in large part on the basis of information, such as the presentence report, developed outside the courtroom. It is purely a judicial determination, and much that goes into it is the result of inquiry that is nonadversary in nature. /373/

((/373/ United States v. DiFrancesco, supra note 372 at 136-137.))

The Court also held that there was no double jeopardy problem with the fact that the defendant's sentence could be increased on successful government appeal of the sentence, making clear that the bar against double punishments applied to a total punishment in excess of the statutory maximum for the offense, not to an increase in the sentence within statutory limits. /374/ Finally, the ++EP++ Court noted the growing criticism of arbitrary sentencing practices, and indicated that "Appellate review creates a check upon this unlimited power, and should lead to a greater degree of consistency in sentencing." /375/

((/374/ Id. at 138-39, distinguishing Ex parte Lange, 18 Wall. 163 (1874).))

((/375/ Id. at 142-143, citing M. Frankel, Criminal Sentences: Law Without Order (1973) and P. O'Donnell, M. Churgin, and D. Curtis, Toward a Just and Effective Sentencing System (1977).))

2. Provisions of the bill, as reported

Section 3742 sets forth procedures for appeal in three cases: appeal of a sentence imposed in violation of law, appeal of a sentence that reflects an incorrect application of the sentencing guidelines promulgated pursuant to proposed 28 U.S.C. 994(a)(2); appeal of a sentence outside the guidelines; and appeal of a sentence in a case in which there is no guideline applicable to the offense committed. Either the defendant or the government may appeal a sentence imposed in violation of law, or through incorrect application of the guidelines, or imposed in the absence of an applicable guideline. The defendant may also appeal a sentence above the guidelines to the extent that it includes a greater fine or term of imprisonment or term of supervised release than the maximum provided in the applicable guideline, or to the extent that it includes a more limiting probation condition or condition of supervised release under 18 U.S.C. 3563(b)(6) /376/ or (b)(11) /377/ than the maximum provided in the guidelines. Conversely, the government may appeal, on behalf of the public, a sentence below the applicable guideline to the extent that it includes a lesser fine or term of imprisonment or term of supervised release than the minimum in the guideline or a less limiting condition of probation or supervised release under 18 U.S.C. 3563(b)(6) or (b)(11) than recommended in the guideline. Of course, a sentence consistent with a plea agreement cannot be appealed.

((/376/ Proposed 18 U.S.C. 3563(b)(6) permits as a condition of probation or supervised release the barring of an individual from engaging in a business or profession related to his offense and restrictions relevant to the offense on the manner in which an individual or organization conducts a business or profession. See proposed 18 U.S.C. 3583.))

((/377/ Proposed 3563(b)(11) permits as a condition of probation the incarceration of a defendant for evenings or weekends or other intervals of time in the first year of a sentence.))

Under sectios 3742(a)(3)(B) and (b)(3)(B) both the defendant and the government may appeal a sentence where there is no guideline for the provision of law that the defendant has been convicted of violating. This would include the situations where there is a new law for which no guideline has yet been developed and where an appellate court had invalidated the established guideline and no replacement had yet been determined. A sentence not subject to a guideline is, therefore, open to broad appeal by both sides.

In previous versions of the bill, appeal of sentence was limited to felonies and Class A misdemeanors. The bill as reported provides for appeal in all cases which meet the criteria for appeal.

The Committee agrees with the Judicial Conference that a defendant who is imprisoned for a minor offense pursuant to an above-guideline sentence, would gain little comfort from knowing that he had been denied appellate rights because the offense for which he has been imprisoned is relatively minor. /378/ ++EP++

((/378/ Crime Control Act Hearings (statement of Judge Gerald B. Tjoflat, pp. 7-8).))

The sentence review process under section 3742 begins under subsections (a) and (b) with the filing of notice of appeal of sentence with the district court. The government may petition for review of a sentence only with the personal approval of the Attorney General or the Solicitor General in order to assure that such appeals are not routinely filed for every sentence below the guidelines.

The limitations on both defendant and government appeal of sentences outside the guidelines based upon the size of the sentence imposed are further restrictions on the use of appellate review of sentences in order to avoid unnecessary appeals. Clearly, sentences at the bottom range are less likely to be abusive to defendants. The same applies to the government when sentences imposed approach the upper range of sentences recommended. The guidelines, therefore, provide a practical basis for distinguishing the cases where review is most needed from those where appeal would most likely be frivolous.

Both sections 3742(a) and 3742(b) refer to the sentence being appealed as an "otherwise final sentence". This language is in accord with the provisions of sections 3562(b), 3572(c), and 3582(b) regarding reviewability of sentences. Those sections make clear that a sentence to a fine, to a term of imprisonment, or to a term of probation is final except to the extent that it may be modified or corrected through subsequent court action. The Committee intends that a sentence be subject to modification through the appellate process, although it is final for other purposes. /379/

((/379/ See United States v. DiFrancesco, supra note 372 at 136-137.))

Under subsection (c), the clerk of the court that imposed the sentence shall certify to the court of appeals that portion of the record in the case that is designated as pertinent by either of the parties, the presentence report, and information submitted during the sentencing proceeding, including the court's statement of reasons as called for by section 3553(b).

Under subsection (d), upon review of the record, the court of appeals is to determine wehther the sentence was imposed in violation of law; was imposed as a result of an incorrect application of the sentencing guidelines; or is outside the guidelines and is unreasonable, having regard for: (1) the factors to be considered in imposing a sentence, as set forth in chapter 227, and (2) the reasons for the sentence stated by the sentencing court.

Under subsection (e), if the court of appeals finds that the sentence was not imposed in violation of law, or as a result of incorrect application of the guidelines, and is not unreasonable, it is to affirm the sentence.

If the court determines that the sentence was imposed in violation of law or as a result of an incorrect application of the guidelines, it is required to remand the case for further sentencing proceedings or correct the sentence.

Finally, if the court determines that a sentence outside the guidelines is unreasonable and too high, and the appeal was filed by the defendant, it is to set aside the sentence and either impose a lesser sentence, remand for imposition of a lesser sentence, or remand for further sentencing proceedings. ++EP++

If the court determines that a sentence outside the guidelines is unreasonable and too low, and the appeal was filed by the government, the court is to set aside the sentence and either impose a greater sentence, remand for imposition of a greater sentence, or remand for further sentencing proceedings. It should be noted that a sentence cannot be increased upon a section 3742(a)(3) appeal by the defendant.

As to the procedures to be followed, the Committee intends that the Federal Rules of Appellate Procedure be applicable to a proceeding under this section. Many of these rules will be applicable as they now exist; others may need modification. The Committee expects that the Judicial Conference and its Advisory Committees will issue specific proposed amendments to cover the details of these procedures where necessary.

The Committee believes that section 3742 creates for the first time a comprehensive system of review of sentences that permits the appellate process to focus attention on those sentences whose review is crucial to the functioning of the sentencing guidelines system, while also providing adequate means for correction of erroneous and clearly unreasonable sentences. /380/

((/380/ See Subcommittee Criminal Code Hearings, Part XIII, at 8608, 8873, 8887, and 8953.))

Section 203(b) of the bill contains a technical amendment to the sectional analysis of chapter 235 of title 18.

Section 204 of the bill amends chapter 403 of title 18, United States Code, relating to juvenile delinquency, in order to conform it to the changes made in adult sentencing laws.

Section 204(a) of the bill amends section 5037 of title 18, United States Code, by replacing current subsections (a) and (b), relating to disposition after a finding of juvenile delinquency, with the disposition provisions from S. 1630 in the 97th Congress. /381/

((/381/ See S. Rept. No. 97-307, at 1184-89.))

Under proposed 18 U.S.C. 5037(a), if the court finds that a juvenile is a juvenile delinquent, the court is required to hold a disposition hearing within 20 days after the juvenile delinquency hearing. After the disposition hearing, the court may suspend the finding of juvenile delinquency, enter an order of restitution pursuant to section 3556, place the juvenile on probation, or commit him to official detention. The provisions of chapter 207 of title 18 are specifically made applicable to the decision whether to release or detain the juvenile pending an appeal or a petition for a writ of certiorari after the disposition.

Proposed 18 U.S.C. 5037(b) sets forth the probation terms for juveniles. If the juvenile is less than 18 years old, the probation term may not extend beyond the date when the juvenile becomes 21 or the maximum term that would be authorized under the adult probation statute if the juvenile had been tried and convicted as an adult. If the juvenile is between 18 and 21, the probation may not extend beyond three years or the maximum that would be authorized for an adult, whichever is less.

Proposed 18 U.S.C. 5037(c) provides the maximum periods for official detention of a juvenile found to be a juvenile delinquent. It parallels the 1974 Act provision set forth in current law for juveniles under 18 at the time of the proceeding. However, for juveniles ++EP++ between the ages of 18 and 21 at the time of the proceeding, the bill specifies that the term of official detention for a Class A, B, or C felony is a maximum of five years or the maximum sentence applicable to an adult offender.

Section 204(b) of the bill repeals section 5041 of title 18, United States Code, in light of the abolition of the parole system in Federal law. The section describes the role of the parole system in determining release dates under current law. It is expected that the time set at the disposition hearing for a juvenile placed in the custody of the Attorney General pursuant to 18 U.S.C. 5037(b) will represent the real time to be spent by the juvenile in a manner similar to that for adult offenders under the bill.

Section 204(c) amends section 5042 of title 18, relating to parole and probation revocation, by striking out references to parole and parolees.

Section (d) amends the sectional analysis of chapter 403 of title 18 to accord with the other amendments made by section 204.

Section 205 of the bill contains a number of amendments to the Federal Rules of Criminal Procedure that are necessitated by the amendments to the sentencing provisions.

Section 205(a) of the bill makes several changes in Rule 32, mo