USSC Public Meeting - March 7, 2024

good morning I'm Carlton W Reeds chair of the United States sing commission and I want to welcome you to our second day of hearings on our proposed amendments for the 20 20 23 24 policy cycle I want to thank each of you for joining us whether you are in this room upstairs or out there in um out there somewhere uh those who are attending uh our live stream I have the honor again this morning of opening this hearing and to uh introduce my fellow Commissioners to my left we have Vice chair Claire Murray uh to her left we have Vice chair Laura mate uh to her left we have commissioner Candice Wong and we have uh on the end there uh Mr Jonathan rusi the ex official member of the United States uh uh czon commission with the Department of Justice to my right is vice uh uh chair of Phil Restrepo and to his right and we're so glad that she's here today uh uh commissioner claria boom uh and on the end down there is uh commissioner John Gleason I always repeat and and say often uh uh as I did yesterday uh can never thank enough our staff of the commission for the work that they do they've put together this room they made sure that our Witnesses who are here uh uh uh I I hope your stay last night was comfortable uh for those who are attending remotely uh they've made arrangements to have you do that as well these two days of hearings uh we're proba I don't run marathons okay so I can't say anything about a marathon okay but we're more than halfway uh we had 12 panels yesterday and uh it it it was a very good day but it was because of our staff who had prepared us who had prepared uh uh the witnesses made it such an easy day and I think today is going to be just as easy uh we have uh as I mentioned commissioner boom is here uh uh she has overcome her medical uh emergency so we've all and again I'm thanking everybody for doing whatever they could do to be here yesterday and today has been uh quite a task I would imagine our Witnesses have traveled thousands of miles and some have rescheduled very important events to be here to testify to give us their comments and again our staff has been up day and night to make sure that this day runs as smoothly as possible but the work will not be done after today uh they along with the Commissioners will still be working I speak on behalf of myself and my fellow Commissioners and actually I speak for our country on this year we thank you the staff so very much for all that you do every day today we will be hearing testimony on our on two of our proposed amendments we will spend most of our time talking about our proposed amendment to change the way the guidelines deal with sentences for and histories of youthful individuals we will also spend some time discussing our miscellaneous amendment to section 2d1.1 of the guidelines to all who are speaking in person I promise that your extensive Journeys and your preparations will be worth it again when you speak with the commission you will be heard and you will be read too because your testimony is available for the public to access on our website www.sc.gov panelists you will each have 5 minutes to speak we will we have read your written submissions your time will begin when when the light turn green turns green you have one minute left when it turns yellow and no time left when it turns red if I cut you off uh please understand I'm not being rude uh as we do have a lot to cover today uh and uh a limited time to hear everyone for our audio system to work you will need to speak closely into the microphones and when you uh when you finish speaking the Commissioners may ask questions uh I'm certain we will uh thank you for joining us and uh always assume that your mic is hot I always assume that so I look uh forward to a very productive hearing uh today with that said I'd like to introduce our first set of panelists who will provide us with perspectives on the neuroscience and psychology that reflect on our proposed amendment regarding youthful individuals first we have Dr BJ Casey who is a Christina L Williams professor of neuroscience at Barnard College Columbia University and is a member of the Justice collaboratory at Yale law school Dr Casey is a cognitive neuroscientist an expert on brain development using brain Imaging to examine developmental trans transitions across the lifespan especially during the period of adolescence Dr Casey's research has been published extensively in distinguished scientific journals including the proceedings of the National Academy of Sciences second we have Dr Elizabeth Kaufman who is a professor in the department of psychological science in the school of social ecology at the University of California Irvine and holds courtesy appointments in the school of education and the School of Law Dr Kaufman's research addresses the intersection between adolescent development and Juvenile Justice her findings were incorporated into the American Psychological association's Amicus brief submitted to the United States Supreme Court in roer versus Simmons which abolish the juvenile death penalty and in Graham versus Florida and Miller versus Alabama which place limits on the use of life without parole as a sentence for juvenal testifying remotely uh and again we thank you uh for being here testifying remotely we have Dr Steven Morse who is the Ferdinand Wakeman Hubble a professor of law at the University of Pennsylvania School of law professor of psychology and law in Psychiatry University of Pennsylvania school of medicine and associate director of the center for neuroscience and Society at the University of Pennsylvania Dr moris works on problems of individual responsibility and agency and his research has been published in numerous interdisciplinar articles also testifying remotely we have Dr Kirk halron uh uh he is a professor in the department of psychological and brain Sciences at drexell University where he has also served as a department head his research is centered on Forensic mental health assessment violence risk assessment and management and interventions to reduce the risk of reoffending and promote Behavioral Health in Justice involved populations Dr haror also uh directs a forensic assessment clinic at Drexel University that provides psychological evaluations to courts and attorneys on issues that include juvenile commitment and desertification competence to stand trial mental state at the time of the offense and federal sentencing I know I said a lot and so now Dr k I turn it over to you we are ready to hear from you and following you we'll hear from Dr cof you may proceed thank you and I'd like to thank the commission for inviting me here today I will keep my comments focused on the current state of empirical evidence relevant to the proposed amendment on um youthful individuals and I'd like to begin by saying or just underscoring the scientific evidence shows unequivocally that there are continued changes in brain and behavior throughout the lifespan but particularly during this period That's relevant for our conversation today of adolescence that's roughly between the ages of 10 and extends into the 20s there are many expert organizations uh like the world uh Health Organization that refer to young people as being between the ages of 10 to 24 and the United Nations has recently um set a new designation of Youth as being between 15 and 24 and this is in recognition that these young people share uh many uh developing attributes even still so during adolescence there are a lot of changes in the brain all the parts are there but the way the different brain regions are communicating with one another is what is changing and that communication gets more efficient with age and importantly with experience too and what you see is Str strengthening of connections that help the brain communicate with distal regions um and also elimination of connections that are irrelevant if we look across the entire brain um and examine this type of development um across hundreds of studies what we see is the last developing region of the brain is the prefrontal cortex the prefrontal cortex and its connections with other brain regions are absolutely key in decision making planning um and selfregulation now um this region shows uh of the uh prefrontal cortex shows significant changes that extend throughout the 20s but there are other regions of the brain that show Peak changes earlier such as those that are involved in Emotion so reward threat gains losses and this differential development that that we're seeing in the brain over this extended period of adolescence is paralleling how we characterize adolescence as a group behaviorally that is in terms of a tendency for making risky decisions um making more short cited or impulsive actions um showing an heightened sensitivity to stress and emotionally and socially charged situations now this is as a group how we characterize them I want to make um sure that it's perfectly clear that adolescents in their mid teenss are quite capable of making decisions even more accurate and faster than some of us here and virtually um but those decisions are ones where they're not rushed and it's not in the emotional stressful um situations where we're seeing diminished cognitive uh processing and abilities and young people after chronic stress or threat or uh negative influences I want to also just to highlight some of the other psychological research that's important just as the brain and the behavior are changing throughout the life course so too is our personality we're all a work in progress but I just want to highlight two personality traits that are changing during this period of adolescence and Beyond and those that are relevant to self-regulation these include a conscientiousness where we see steady changes and Improvement and also em motion regulation most of the evidence that I have uh cited so far is um based on relatively uh healthy individuals but we see these same changes in young people who engage in extreme behaviors too the majority of which show a decline and I think the most robust evidence of this is the age crime curve that we're all familiar with where we see a peak in the late teens and then a dramatic decrease throughout the 20s um we get an even bigger decline as um with targeted treatments even young people that are high on antisocial traits are showing this change which suggest basically from the data that young offenders um are not encourageable or less responsive to remediation it's about getting the right intervention or treatment we know that development doesn't occur in olation or in a vacuum it's in an environment and so as such youth um require opportunities to help them develop the very social emotional and cognitive skills necessary for becoming a contributing member of society I'd like to thank you again for allowing my statement thank you good morning thank you so much for having me here today I'm excited to be here and thank you Dr Casey uh as you heard I'm going to let the expert here on the developmental science speak to the brain what my focus will be on is the last 25 years I've really been trying to take the developmental science and apply it to youth in the justice system I want to tell you about two studies in particular that we've done the first is called Crossroads now Crossroads was a study done with what do you do with the kid who's committed their very first offense it's a low-level misdemeanor offense what do you do do the crime do the time or kids are different Second Chances what's the right response well to be honest when we started this study over 9 years ago we didn't really know the answer there's been some research looking at the impact of the justice system but what's the impact developmentally long term so we have been following these young people for nine years to see what is the impact so imagine you have two kids they're identical but one gets formally processed one gets adjudicated they've both committed the same crime right imagine they're identical twins they've both committed the same crime but one gets the adjudicated incarcerated gets the harsh sentence the other kid gets diversion or some sort of um community service we follow these kids and what we see is the more harsh you treat a child the more likely you are to see reoffending reincarceration problem Behavior realize they were the same to begin what happens to a young person I can tell you today 5 years later you're you're going to see more rearrest more reincarceration the kids who got diverted the kids who got community services the kids who had what we called a sanction and dismiss where they had to write a letter and apologize more likely to graduate from high school more likely to have an optimistic view of their future this is really important findings because I can tell you today what you do to a kid today 5 years later what the outcomes will look like this is a prospective study that's been published peer-reviewed and vetted it's also in your reports um and available to you so that's just one study that we've been doing that's Crossroads and there's a lot more research on that and I'm happy to share more research about that or more data about that research the other study I want to tell you about is Pathways Pathways to desistence so Crossroads with with with a kid who committed their very first offense misdemeanor low level but what do you do with a kid who's committed a very serious crime a crime that our society is typically afraid of that we do do the harsh sentencing for aggravated assault robbery even murder what do you do with those kids most research looks at what gets kids into crime but what gets kids out that was the goal of Pathways did assistance study so we started with kids who had committed very serious felony level offenses and we followed those kids for seven years and here's the question I'm not going to lie when we started this study we didn't know if anybody would stop nobody had ever done this before we followed these young people for seven years what we found were two very important findings first just because you know the offense doesn't mean you know the offender that means kids are equal opportunity offenders there's no specialization you can have a kid who commits a very serious crime or a less serious and lo and behold they followed different paths we're very poor at predicting who's going to stay in that path second big finding the majority of these young people by the time they reached their late 20s desisted from crime they stopped so if you followed the path we had kids who were committing very serious high level offenses between the ages of 14 to 17 but the time they reached their mid-20s the criminal patterns had desisted these were two very big findings there's variability and heterogeneity among kids who commit serious offenses and to by the time they reach their mid-20s they desist needless to say this aligns very well with what we see with brain development if you're looking at the frontal lobe developing that prefrontal cortex that's what we see so these two Studies have really allowed us to better understand how kids in the justice system behave there's no question kids need to be held accountable that we all know every parent knows a child needs to be held accountable it's not whether you hold them accountable it's how and so what we need to do is use the developmental science to find the developmentally appropriate ways to hold young people accountable so I want to thank the panel and I'm happy to address any other questions you might have about these two studies or any other of the research that we've done thank you next we'll have um Dr uh mors make sure you're uh make make sure you're unmute unmut it and and you may proceed when you get ready sir good morning and thank you for inviting me to be here I favor giving young offenders more of a break but science cannot answer how much a break of a break is just I do not favor the proposed amendments in their current form I will make suggestions about alternative approaches in his dissenting opinion in Miller against Alabama chief justice Douglas uh Roberts wrote quote teenagers are less mature less responsible and less fixed in their ways than adults not that a Supreme Court case was needed to establish that end quote precisely the centuries old immaturity excuse and the creation of the juvenile court well over a century ago confirmed that the law long recognized that teenagers are different for legal purposes psychological science and Neuroscience were not necessary for this recognition whether the commission should accept any of the proposed amendments or reject them all is not a scientific question it is a social moral and ultimately it is a legal question that science can inform but cannot answer any decision any decision the commission reaches is entirely consistent with the science of juvenile and young adult psychosocial and brain maturation science does not compel any particular outcome concerning the proposed amendments I have no quarrel whatso ever with the relevant science including what you've just heard this morning from my distinguished colleagues but the Law's criteria for responsibility are behavioral roughly the capacities for rationality and self-regulation and the person's amount of life experience I call these The Right Stuff the question is at what age do people have enough of the right stuff to be treated as an adult even if behavioral maturation is incomplete at a given age the law can properly decide that they have enough of the right stuff to be held fully or almost fully responsible in particular the Neuroscience of juvenile and young adult brain development is only indirectly relevant because the laws criteria are not neural psychosocial maturation is directly relevant to the laws criteria but such maturation continues long past the mid 20s as I assume everyone here today knows this is true even if certain brain structures apparently associated with behavioral maturation cease developing in the mid-20s further focusing on the brain may cause us to underestimate the social and economic contributions to criminal offending before turning to my suggestions about the Amendments please let me say a few words about the maturation and morality of younger offenders on measures of Psychosocial mat atation and brain development there will be great overlap in outcome as people are closer in age for instance 16 17 18 and 19 year olds will be quite similar on average 17 and 18 year olds may be almost indistinguishable moreover adolescence and young adults know that criminal behavior is wrong and gives people the strongest reasons not to hurt others they have a moral compass science cannot draw the bright line between full and lesser responsib ility nonetheless as a social and moral and legal matter I do favor giving some juvenile offenders a break because they may not have enough of the right stuff in my written statement I offer the commission suggestions about what I consider the helpful approaches let me review them briefly I would not count juvenile convictions for less serious crimes in the criminal history calculation for serious crimes say index offenses I would count them the calculation if they were committed by 16 and 17 year olds and especially if the conviction was in adult Court I am ambivalent deeply ambivalent about whether to count serious crimes committed by those who are 15 or younger such offenders have considerably less of the right stuff on average but some do have enough and they may be very dangerous I would have a presumption against counting the history for these juveniles offenders but it would but would permit Counting it after an individualized searching inquiry into whether a particular 15 and younger offender had enough right stuff when they were convicted I would not adopt the proposed age policy statement amendment in my written statement I gave detailed reasons why but in short it is too directive and too brain focused I proposed alternative language that is more consistent with the laws required normative judgment and the relevant science except in unusual cases I would be disinclined to favor downward departures for serious crimes committed by those 18 years old and older because in my opinion these offenders generally have enough of the right stuff even though they will surely have more of it as they age thank you again for inviting me thank you Dr Morris uh Dr halwin um you thank you for uh unmuting and and you can stay on the camera you can keep your camera unmuted after you uh uh do your opening sir because we'll have questions I'm sure you may proceed I I will do that I'd like to thank the commission and my colleagues who have provided uh earlier testimony and I would begin with the comment that there is good consensus in the scientific literature on two points that you have heard about first that youthful offenders are within the cohort of highest risk being between the ages of 15 and 24 and secondly youthful offenders are also within the cohort of more limited culpability due to developmental immaturity and the various things that go with that uh there is no additional science to my knowledge that is available that would modify those conclusions as Professor Morris has noted there are also a number of questions that the science cannot answer but let me turn to uh a a somewhat different perspective which involves individual differences because what you have heard so far are what scientists would refer to as main effects that youthful individuals differ as a group from older individuals on several Dimensions but one of the considerations that's important for me is to observe that uh risk and developmental immaturity also vary within this age cohort risk is affected by a variety of risk and protective factors some are personal some some are situational uh these have been identified in the scientific literature for some time these can be appraised with reasonable accuracy by well validated risk assessment measures that exist such as the savary the level of service family measures that I cited in my statement and these are this kind of risk is subject to being lowered through rehabilitative intervention Dr Kaufman noted that if you follow kids over a seven-year period it also gets lowered for a variety of Life related reasons but it's important to note that that it can also be lowered for reasons related to interventions that you might deliver assuming that you deliver the right interventions and you have the right programs and it's delivered in a way that uh that is reasonable and has Integrity as scientists would say and so on uh one of the biggest unanswered questions that science can't really help us with has to do with what we call responsivity which is the question of what you deliver to who and how they are likely to respond I wish science had more to say about that it has not been studied as much as it should have been uh and I would uh also make an important Point important to me that uh that one of the things that you might do if you were as a lead legal system interested in using science more effectively is you would seek out the option of using risk assessment to appraise individual differences more and you would deemphasize the the punitive aspects of what you might do based only on the behavior of individuals within this age cohort this is a an approach that my colleague Christopher slogan terms preventive Justice ice and it involves focusing more on individuals appraising their risk describing how you might use that risk and needs to intervene and gauging what you do and how you respond to individuals not so much based on the offense or the immediate Behavior but on the level of risk and the needs with the desire to intervene and reduce subsequent risks so with that I will stop and I once again again thank the commission and I thank my colleagues who have testified before me thank you so much uh Dr harber now I turn to my colleagues who wants to be first this morning okay thank you morning thanks to all of you for being here Dr Morris I'm curious as to this this uh term you refer to as the right stuff and I'm curious as to whether or not socioeconomic factors in an individ in an individual's life such as exposure to violence trauma food insecurity lack of educational opportunities growing up in difficult neighborhoods does that impact the development of the right stuff it is those kinds of factors sir are certainly risk factors for not developing the right stuff as well we would like the only question is in an individual case that a sentencing judge has to decide what is this kid as Dr hbr said everything is individual differences what is this kid like and that you can only determine by looking at this kid's Behavior today some kids with really favorable backgrounds turn out miserably and vice versa I'll ask the same question of of the other professors Dr Casey and Dr Kaufman Dr hurn would so we do know that the circumstances in which you described can exacerbate some of this um differential development of different uh brain systems cognitive and emotional and um so that uh can result um in more disregulation of self and emotions but with time and intervention um it's been shown uh that that behavior um can change as well we measure those things both in The Crossroads study and pathway study so it's a very important question how do these risk factors play out long term we actually have seen that kids who've been exposed to violence actually then have more difficulties later but as Dr casy and and my colleagues as Dr cber will point out plasticity of the brain capable of change right interventions with the right person when you're making guidelines you're making them on everybody but then you need to move to that individual in the moment so the guidelines need to fit that individual in that process so it's an interaction effect on those things I'd say two things in response to that question first if you identify risk factors as as those are there is a cumulative effect the more risk factors you experience the more difficult it becomes to develop what Professor Morris has called the right stuff which I I like uh th those are uh that that's a really important consideration but the second is I would Echo what my colleagues have said about uh the individual differences and the single case and and make the important point that uh there are any number of individuals who experience the sort of risk factors but do not become Justice involved and so the the one thing that you might look at in addition with that Justice involved kid is what are the protective factors is there a port in the storm is there someone who helps a mentor a coach a grandmother or something like that because that's something that you can identify and help to build on that strength as well as approaching this only from a risk factor deficit based perspective uh commissioner gleon and BC Murray thank you um thank you all for your written uh input and for and for being here today I'm struck by by a couple of things one is the this age crime curve and how steep it is until an effect until adolescence reach the age of 18 but then also how steep it is it's almost as steep in Decline and even though it takes until you're 60 to reach the rate of violent crime that you are at 10 you get near as I can tell about 70% of the way there by the time you're 25 so it's a steep decline I'm also struck by what I hear from three of the four of you at least um and that is promise even in that period before age 25 the that promising interventions to use the terminology from Dr um Casey and Dr somerville's report and informal processing to use the terminology of Dr Kaufman and Dr Basin Summers report um are a promising way of treating youthful folks who get in mesed in the criminal justice system I actually have a question I'm going to get to it in a second um and lastly you know I'm I'm struck by Dr h Bruns uh in very informative testimony about how they're not it's not uniform across the univer Across the Universe of young offenders and risk assessment is important and lastly and I really want your advice on what's going on in the federal system I'm struck at how little what you have to say to us has insinuated itself into at least Federal criminal justice now there are these Grassroots programs that are not federally guided federally monitored in any sense many of them are youth programs that one one of them in my old District I was a judge in Eastern New York uh calibrates the intensity of the supervision of youthful offenders by reference to risk is a risk measurement pre-trial Services risk assessment and the more intense supervision is reserved for the higher risk sounds sensible but it's not this isn't terrain that we've been traversing at all in the federal system and I guess my advice that I that I'd like to get the the advice I'd like to get and we'll start with Dr hrun but I'd like to hear from all of you is what can or should we do to uh to to reap the benefits of these you know informal processings or uh these uh intervention supervision incarceration costs so much supervision doesn't supervision seems to have a dramatic downward effect on recidivism rates what what advice do you have for a centralized body maybe the advice is to leave these Grassroots courts alone Grassroots programs alone and let them develop as Laboratories should we be involved should we provide assistance to them through social science or Neuroscience or data collection I'll stop there what I would say is you've described a program that seems quite well informed about basic principles of risk need and responsivity the idea that you would treat individuals and Vary the intensity and the supervision and so on according to risk is is a well accepted so-called risk principle and whatever we do I wouldn't interfere with that kind of thing I would promote it and underscore how important that is unfortunately I think that many many programs out there aren't guided in that way and one of the things that we can do as a as a legal system and as a commission you is uh as exists today is promote those kinds of that kind of thinking in a in a broader way uh is to Pro promulgate uh principles and guidelines and so on that have to do with if you're going to run something like this and we really hope you do here are some of the ways that you can do it because there are people out there who can provide the sort of support and scientific evidence and guidance in how you set that up and run it but it really uh a lot of it has to do with how well you do at the Grassroots level in implementing that sort of thing and it sounds like at least in that particular case they're doing quite well I'm just going to Echo what Dr hurn said I mean one of the things we know from our research is kids who are at the lowest risk need the least amount like you you put your high-risk needs with your high-risk kids and that research has been shown over and over again and so one of the things you know you don't need a sledgehammer to put in a tack right so you try to figure out the best fit um and and I have a feeling sometimes our laws sometimes use a sledgehammer on everything when you could just use your thumb and so it's really figuring out the right balance because all the risk risk assessment processes and intervention techniques have shown that one of the problems uh that has bevil the uh legal system is the failure to use what evidence we have so at this point we make risk assessments predictions of future violence in many areas of civil and criminal law and there are now good risk assessment evidence as my colleagues have said and they're not used even when they are relatively inexpensive and the like so the question is how can this sentencing commission get this kind of evidence into the right hands and my sense is and I don't know precisely your remit but I think the federal probation officers are the people who need to get this information they're the ones that are be most involved in sentencing other than the actual assignment of the sentence itself and they're the people who need to know this I've spoken to the federal probation officers on a couple of occasions and they are thirsting for this knowledge in most of the districts not all and I would just Echo that the National Academy of Sciences has formed um committees and workshops and have reports about the importance of using a neurodevelopmental approach and the treatment of young people um young offenders and Stephen by Nur developmental I mean Behavior too just to make sure I qualify that for you thank you thanks so much to all of you for being here this has been tremendously helpful um to me and I'm sure to all of us that um I was struck in listening to all of you how much agreement it seems like there is on the I'm worri I'm going to get both the brain science and the Behavioral Science and um the harder question I think is just the translation into policy and um we you probably know this but we have sort of two sets of amendments we're looking at and I'm trying to think through how to translate what you've told us into policy and one of those amendments we're looking at is a a policy statement on a ag rate so it's kind of our chance to talk directly to judges about age um and that one seems really kind of apples to apples to me on what you have all have all told us I it's kind of like it's kind of like Crossroads or Pathways right like we can tell judges here's how we think age is important um so that one seems relatively straightforward I mean you'd have to like work on wording and things like that but the harder one to me seems like the one about criminal history so this is a an amendment we're looking at where we're saying when you have a group of offenders that actually really is kind of different than the crossroads and Pathways people it's people who are a little further down the age crime curve right they're 23 type thing but they have previous offenses from when they were juveniles or when they were um considered young adults but were um you know 18 or 17 how do you like is that relevant right so if you're if you're a judge and you're trying to figure out how to deal with an offender who is a recidivist and has this criminal history does the brain and behavior science tell us anything about whether that is probative or not like it doesn't make sense to say you're a judge you're looking at someone who's in their 20s who's you know relatively you know not super far they're not 60 but they're a little further down the age crime curve are those juvenile whether they're an adult or a juvenile judication are those irrelevant or is there something probative that the judge might want to know when figuring out how to um address that defendant and so that's the that's the kind of part that I'm struggling with based on everything you guys have told us today and I anyone who wants to CH in I'd love to hear your thoughts Kirk I'm gonna throw it to you first because oh go ahead I was I was throwing it to Kirk but I I have some of the research it back and forth to one another I'll be happy to start briefly from a risk assessment perspective you don't want to dis regard information like that now you might weigh it differently because you might think of things that occur before the age of 15 or of lesser severity as having less culpability and for the reasons that you've heard about but from Simply from a risk assessment perspective you you don't want to disregard criminal history entirely and one of the things that I would add to this is you've heard from all of us that there's this phenomenon which has been called in the literature desistence and life course persistence in offending and I'm sure people are familiar with that as you heard from from Dr Kaufman uh most young offenders desist the great majority do but some do not and one of the things that you have to consider I think if you're a sentencing judge is do you have an individual who as as suggested by a a longer and more serious history of offending as well as other things is going to be difficult with the with the rehabilitation and the desistance so that's that that's what I would add it's it's you have to treat it carefully but it's it's valuable information I agree with uh with Kirk hrun it is very valuable information and that's why I am not in favor of option three as it is written one of the things we haven't talked about although I think it was Dr Casey who brought up the question of carage ability corage ability is important to you only if you have consequential concerns for criminal justice if you're concerned more fundamentally with whether the person deserves a particular sentence then carage ability becomes less important I'm not here to tell you how this commission should balance uh dessert against consequential concerns like the need for incapacitation and deterrence but it is perfectly consistent with the science to decide that even though younger offenders don't have as much of the right stuff they do have enough and therefore they deserve perhaps U more harsh penalties than you would impose if you were just considering incapacitation and deterrence these are very hard moral and legal questions I I want to just Echo what was just said um and the reason I threw Dr hurn first is because risk assessment is where we start right we always use those risk assessment processes and you never want to disregard information but that's also why Crossroads and Pathways were so important now Crossroads was first time no prior offenses like that was that was the goal of Crossroads and lowlevel offenses the pathways to desistance study was with kids who committed very serious offenses and they had history I mean these were kids who this is these are the kids that you're worried about right these are the kids with prior criminal history very serious offenses and following those kids for seven years and the fact that the majority of those young people desisted reminds us that kids are still malleable and changeable that said as Dr hurn point out about 10% so of you know a small percentage do persist now the problem with that is risk assessment and and I'll maybe Dr Halburn and I'll arm wrestle on this one um I like to refer like it's we're really good at predicting short ter term I always I'm going to steal from John Monahan a very well-known law professor it's like predicting the weather if the weatherman told us this afternoon it's going to rain you're going to bring your umbrella if the weatherman told you in 362 days and 5 hours it's going to rain are you going to bring your umbrella maybe maybe not right and so we're really good particularly with kids and this is where the developmental science is really important we're really good at predicting the short term we're not good at predicting longterm and one of the things that we see in the research is the further we get out the less less well we do at prediction so when you're making decisions about kids it's shortterm short and Swift in fact one of the things we saw in the pathways to the assistance study after six months of incarceration you don't get a return on your investment if you were an economist or you were a business person you'd look and go we're not getting any more bang for our buck now it doesn't address what Professor Morris is talking about which is the moral the ethical those kinds of concerns but if you're looking at science that's what science is showing you so that's where your tension is you have the science and then the balance and as long as you know what the science is it can help you at least guide what you think fits with the other pieces as well because both are important um so I would just add um one more element to this uh in terms of the potential for bias and the research that we know there so um there are going to be more rest in areas where we monitor um more frequently I live in Harlem um we are monitored very frequently there we also know um that harsher sentences are applied to black youth and they're perceived um as more uh threatening and as up to four and a half years older than they are based on Phil goff's work that was published in the procceedings of the National Academy um and so I think we um we need to be careful in terms of thinking about how would you weigh that I would I'm a scientist I would just throw it back to you how would you weigh that equally given some individuals um are uh going to be at greater risk for being arrested and incarceration incarcerated um in terms of trying to make that statement and then I just have to say as a scientist um I wish the science were there but we're not at a point where we can infer from group to individual so all of these issues that my colleagues have raised um are very important and significant here I have I was looking around to see if anybody else have I I do have you were pointing oh I'm sorry I was going to let you go first no no no all right um so I want to thank each and every one of you I think that your materials were really really informative so interesting I am a district court judge so I sentence um folks uh routinely and I really appreciated you know the balance um Dr Halburn as far as you know there are two clear consensus right in the scientific literature that youthful offenders are within the cohort of the highest risk um for violence and other criminal offending and that youthful offenders are also within the cohort of more limited culpability um due to developmental um immaturity and so at the place where I see these folks they have been in and out of the Juvenile Justice System typically um receiving graduated um punishment um many many times in and out and they have now become adults and are continuing to recidivate and so my challenge is to balance all of this incredibly helpful scientific information that you have provided to us that I certainly you know want to be more and more conscious of um in you know all sentencing matters but at the same time balancing that right with the data that we have that youthful offenders recidivated higher risks I mean we had very recent um data that demonstrate that and so um I appreciate this idea of an the individualized risk assessment um type of tool which I have not seen um used really frequently that I do believe would be incredibly helpful and you know sentencing is I I the point I can't remember who made the point sentencing is individualized right that's our job as a judge is to impose the least sentence possible that still um promotes or honors the purposes of pun M and it is an individualized assessment each and every time just because you know one person has a juvenile conviction that scores two points or one point it's going to be different um than someone else's juvenile conviction and those are the kinds of normative judgments that we as district court judges have to make every single day and I think we have to have that information in order to say is this twoo like it this other twoo how can I try and predict if this is someone who is going to beat the odds and not recidivate at the risk of at a rate of 70% and so you know I I want to thank each and every one of you I think that your um your materials are are super helpful and enlightening um you know if there are other ideas on how we can take that science and translate it into these judgments that we have to make each and every day but I agree that ignoring information is not helpful at all um so I don't know if that's much of a question other than um a thank you and if you have other ideas the individualized risk assessment I think is a really great idea and could be a really useful tool um let me yes I I just want to make a brief response to what was just said which I agree every word I agree with every word of it one of the problems for sentencing judges is there is no consistent set of sentencing goals that the sentencing judges have it's sort of a mishmash I'm sorry to say and the Supreme Court has contributed to that it's so difficult how do you weigh and balance incapacitation deterrence desert there's no algorithm so every judge faces a sort of very difficult decision every time they make a sentencing decision uh I as I said I have a couple probably three questions but I'll try to make them very brief uh for Dr Casey and Dr Kaufman it's going to be a similar question and it's somewhat Dove tell off of what judge boom said we're a policymaking body so I'm just trying to figure out what is it that we could do how could we best incorporate for you uh Dr case incorporate Neuroscience around cognitive development into our federal sentencing practices do you have any thoughts on how we might do that where that Journey might take us similar question on the psychology end because we need to consider this information Dr Koffman how do you you know you know is it should we do Road shows should we uh have you know you experts come to us and help us develop specific policy what do you suggest from a a neuroscience perspective and Dr cofin from a psycholog you know from a psychology perspective so I believe that the Neuroscience is um additional support for the psychological um um treatment of young people in the system um as as a neuroscientist I can tell you less about what you do in the law and the policy but I think there's converging evidence in terms of the potential for change for so many of these Youth and the work that Dr Kaufman presented today really shows in terms of diverting someone or the treatment that you use not only helps that individual but it actually protects Society because we see less Reit ISM when we go that approach Dr Koffman it's a great question and I wish I had a great answer um it's a hard question I mean I don't envy your job that's a I mean wow so you know it's easy to talk about the research but how do we actually apply it some of the things that we have Come Away with our research formal versus informal processing that's what crossroads was about we know from that research more informal processing diversion for instance one of the biggest findings we saw was a sanction and dismiss which was write a letter of apology and this was for firsttime offenders now realize looking at who you're you're dealing with we saw that have the biggest effect on reducing criminal Behavior six months later so you are at the risk of this is the population who's going to be doing the most stuff I mean if you think back to your own adolescence this is when you were doing the most stuff but how do you respond kids are approach focused which means they're reward focused we actually know if you want to change a kids's Behavior it's four rewards to everyone punishment everybody's like I'm going to give a kid for a reward for doing thanks for showing up on time today I really appreciate the effort you put in today those kinds of things that's a reward when some like this morning when you thanked us all that was a reward rewards can be really small and if you want to actually shape Behavior it's four rewards to every one consequence that actually shapes and changes kids Behavior so we know informal processing works we know with Pathways we actually saw I didn't get into this part of the research when you incarcerate a young person you're hearing all about the developmental science incarceration actually makes and does the exact opposite of what we're trying to achieve so if you have kids who are developing impulse control future orientation all the developmental things we talk about if they spend half of their one year so let's say from 17 years to 18 years in a jail they're less immature than their counterparts a full year even more so we actually see incarceration have more detrimental effects and do the exact oppos opposite thing than what we want to achieve now don't get me wrong we need to do something but incarceration The Way We are incarcerating young people right now is having the exact opposite effect and if you think about what kids are supposed to be doing they're supposed to be going to school they're supposed to be making mistakes but we put them in a setting when they're told when to wake up when to go to bed they can't make a mistake the way in which we have designed you are a body that has the power to change how people do things we should ch like the way in which our system incarcerates young people should fit the developmental science giving that freedom of way in which we know kids would would change and grow in a better way because if you're going to hold them accountable you need to do it in that developmentally appropriate way we know we're making them worse and I do want to tell you just one outcome of that study upon release kids can rebound again it goes to their plasticity so it's not a permanent detrimental effect but while they're incarcerated we're actually doing more harm and doing less of what we were hoping to achieve than the the final question and I apologize the final question D tails off of what judge Restrepo opened with the other type of factors that might go into uh uh leading to antisocial behavior of children uh are there any Environ specific environmental stressors that might lead to that like we uh know that they're lead poison in the pain for example are there any specific do are there any I I I guess I should ask that question Are there specific environmental factors uh including of antisocial Behavior within the Family itself but what other type of environment or if there are envir environmental factors that might uh affect a child's ability to to to you know go along the path of leas resistance if you will I can start with a very brief answer I'll give you two words in response to that family and peers if there are problems within the family and there very often are for justice involved youth that's a big risk factor and our best empirically supported interventions for reducing those problems in the community focus on the family secondly peers are enormously important for kids in this age range and to the extent that you interact mostly or seem mostly anti social peers and somewhat older models then your risk goes up for antisocial Behavior I would like to answer your original question by simply saying that this commission can't do much about intact families it can't do much about neighborhoods it can only decide how we can respond after these factors have occurred and there I think again I would urge you to encourage the federal probation offices to be exposed to this kind of evidence through programs through education and the like that is your best bet I think for getting this kind of information about the age policy statement and the uh criminal history calculation you have my statement for my specific suggestions thank you Dr moris I I'll just Echo what's already been said we know that there are certain risk factors that get kids in environments you whether it's trauma whether it's uh poor neighborhoods uh family and peers I think Dr hurn said really well one other thing that um that I think is really important to discuss that we haven't is substance use um substance use alcohol and drug abuse substance use sorry it wasn't be okay but alcohol drug use that's also very important to pay attention to as well thank say ditto doctors we certainly appreciate all that you've done done and the information that you provided to us it is so it is so useful uh and we thank you all uh and we've gone over time and we'll move to the next panel thank you so much thank all of you Dr you and Dr hin did great thank you thank you thank you everybody take care [Music] [Music] [Music] f now that you've seen how we do it uh thank you all our second panel provide uh will provide us with perspectives from experts in Criminal Justice first we have Marsha levik the chief legal officer and co-founder of the juvenile Law Center in Philadelphia Pennsylvania she is an adjunct faculty member at Temple University Beasley School of Law Miss Lev has authored or co-authored numerous appellant and advocus briefs including the lead child Advocates amicus briefs in the United States Supreme Court cases of rer versus Simmons Graham versus Florida jdb versus North Carolina and Miller versus Alabama after her we will have Professor Aaron Collins who teaches evidence law criminal procedure sentencing law and immigration law at the University of Richmond School of Law her scholarship examines popular criminal justice reforms such as specialized Criminal Courts gender responsive punishment practices in Actuarial sentencing with particular focus on how evidence-based uh datadriven reforms can replicate systemic inequities and stall decarceration efforts third we have Dr John La a distinguished United uh distinguished University professor emeritus in the Department of Criminal criminology and Criminal Justice at the University of Maryland College Park Dr lob's area areas of research include crime and the life course crime and public policy and the history of criminal ay he has published widely and his Publications have earned ma major Awards he previously previously served as the the director of the National Institute of Justice in the office of Justice programs in the Department of Justice and has served as a president of the American American Society of criminal H miss levic you may start when you're ready thank you thank you good morning thank you for inviting me to testify this morning to address proposed amendments to the treatment of youthful individuals under the federal sentencing guidelines I have spent decades advocating for Nationwide for the rights and interests of Youth in the Justice and child welfare systems as reflected in our written comments unlike the Federal Criminal Justice System the American jinal justice system is a 51 jurisdiction Patchwork of diverse policies and practices Rife with variations inconsistencies and discrepancies with core objectives of individualized consideration and indetermined sentencing and nearly unbridled discretion at every decision Point inconsistent and arbitrary outcomes for youth are inevitable the last 20 years have been a watershed in developmental research as the previous panel just shared This research led to six Landmark US Supreme Court decisions striking the most extreme sentences for Youth and expanding youth rights during custodial interrogation collectively they establish that young people are different and our constitutional and legal practices must be reformed where necessary to reflect these differences the Amendments under consideration today go to the heart of these research findings and we welcome them as juvenile Law Center has noted in our written comments it is largely because of the inconsistencies and discre ancies inherent in the juvenile justice system that we urge the commission to adopt option three of part A and we support the proposal to explicitly include consideration of Youth at sentencing but Council against specifying further criteria to be addressed in preparation for today's hearing I reviewed all of the comments submitted in response to the proposed amendments in the few minutes I have I will address what I believe or false assumptions that are driving opposition to these proposals with respect to part A A Honus of option three contend that adult convictions of Youth must be available to ensure Federal sentencing takes account of the most serious criminal history of young people this concern is premised on the false assumption that only youth who commit the most serious crimes are prosecuted in Criminal Court according to data collected by the national Center for Juvenile Justice in 2020 around 60% of all youth transferred to criminal court with charged with person offenses including simple assaults as well as more aggravated crimes about a quarter were charged with property offense es and the balance were for drugs or public order offenses further in States like Wisconsin Georgia and Texas where all 17year olds are prosecuted in Criminal Court the percentage of property and nonviolent offenses including any and all misdemeanors is obviously much higher and given that another eight states only raised the age of juvenile court jurisdiction to 18 in the last five or 10 years there is another substantial cohort of 16 and 17 year olds who were prosecuted as adults for any and all crimes whose records could also fall within this look back I would also note that all but four states allow for youth to be tried in adult Court based solely for on drug offenses in addition to the inaccurate assumption about what crimes his youth have committed the opposition also wrongly assumes that these youth are somehow more mature or more adult-like than their juvenile court peers there's no research to support such a claim the research actually confirms that all youth in this cohort generally share the same developmental traits and characteristics depending largely on where a youth lives the criteria for adult prosecution vary widely with no National consensus on such key considerations as age type of offenses who the decision maker is or even how much to process a youth should receive this lack of consensus leads to ARB arbitrary outcomes across the transfer landscape at the same time despite this lack of uniformity and the criteria for transfer uniform and pervasive racial disparities have persistently plagued the adult prosecution of Youth data from 2020 reveal that black and brown youth made up 2third of all transfers to criminal court and black youth in particular were more than twice as likely to be transferred for person offenses with respect to Part B opponents rely on reported higher rates of recidivism to urge support for consideration of this data in sentencing youth this Reliance I argue is likewise misplaced setting aside questions about the accuracy of any particular methodology for for measuring recidivism Decades of research also confirm that the vast majority of Youth naturally age out of criminal engagement by their mid to late 20s referred to as the age crime curve which you just heard about it is also true that there is heightened criminal activity among older teens and young adults but to enhance punishment for this age- related and Tim limited elevation in criminal offending that is not in fact indicative of later criminal conduct is not smart criminal justice policy this commission's mandate is to develop guidelines that are certain Fair avoid unwarranted disparities and reflect the advancement of human knowledge our support sorry our support for option three and for the explicit consideration of age in Part B is consistent with this mandate across the country in every state the failures of the Juvenile Justice System subject children to Injustice by race and Injustice by geography failure to adopt these bold and smart amendments will simply export and nationalize this Injustice at the federal level thank you thank you profess C good morning thank you so much for having me I'm so excited to be here um I'm going to focus my commentary on the proposed amendment to the age policy statement in section 5H 1.1 of the guidelines I'm encouraged by the possibility that the commission will expand the opportunity for more people to be eligible for a downward departure based on age by removing the unusual degree limitation I'm concerned however with the proposed instruction to judges to consider research regarding the correlation between age and rearrest rates when deciding whether to Grant such a departure and I urge the commission to reject this part of the proposed amendment for the reasons that I'll explain in essence the proposed amendment requires judges to consider group recidivism data when assessing the suitability of a downward departure in an individual case recidivism has a straightforward definition it connotes a return to criminal activity as measured in analyzed however recidivism becomes a malleable Concept in some context and for some purposes we measure recidivism by a new conviction in others a new period of incarceration the filing of a new charge or as we see in this proposed amendment a new arrest using arrest rates to assess recidivism is the least accurate and most concerning method of measuring whether somebody has relapsed into criminal Behavior as Professor Anna Roberts has explained at length arrest and guilt are factually and legally distinct Concepts an arrest reflects a determination by law enforcement that there that there is probable cause to believe someone has engaged in criminal activity um arrest as the Supreme Court reminds us happens to the innocent as well as the guilty that someone was arrested does not tell us whether the arresting officer assessment was correct whether the government has proof to substantiate those allegations Beyond a reasonable Deb out or whether that arrested person actually committed a crime therefore arrest is a misleading measure of recidivism it identifies many people as recidivists who have not actually engaged in criminal Behavior I also encourage the commission to scrutinize the relevance of group recidivism data to sentencing decisions using an individual's criminal history records to predict a person's future behavior is an established sentencing practice um many scholars have offered powerful analyses of how criminal history data reinforces embedded racial biases and I hope the commission will consider these critiques as it develops future amendments for purposes of the proposed amendment however I'd like to emphasize one key difference between criminal history information and group recidivism data criminal history information consists of documented convictions of a particular person being punished historic group recidivism data lacks this direct connection to the behavior of the person being sentenced the past behavior of young people who were arrested even if it was was criminally culpable does not dictate that a particular person who is being sentenced will have will behave similarly in the future simply because they are young and yet that's the very inference that's required to render this group data relevant to individual sentencing decisions notably the guidelines prohibit judges from considering an individual's AR arrest record without mower um as the basis for an upward departure I believe it would be logically inconsistent therefore to allow a judge to deny a downward departure because of the possibility one may be arrested in the future an inference based on how people other than the individual behave individual being sentenced may have behaved in the past I'd also like to offer a few comments on the limits of recidivism data in general recidivism data provides only a glimpse of who is suspected of engaging in or who does in fact engage in Behavior deemed criminal and what we see in that Glimpse is shaped by the structurally unequal and racially biased context in which the criminal law is enforced quite simply and we heard this on the previous panel arrests occur where the police officers are in certain communities and certain locations specifically low-income urban communities of color are policed more heavily than others the racial biases embedded in the data emerging from the emerging from these disperate policing practices are then replicated in the data that forms the basis of recidivism predictions moreover while recidivism data is often used as a shorthand for Public Safety this is a deeply flawed proxy even if we assume recidivism statistics accurately reflect culpable Behavior it tells us nothing about the severity of that behavior most recidivism statistics do not distinguish between those who recidivate by committing quality of life crimes with Those who commit homicide and some studies including one uh cited in the proposed amendment Define as recidivist those who are arrested for behavior that is not criminal but that is prohibited because they are on some form of supervised relief release um I'll just underscore that recidivism is simply one way to define and measure Public Safety and criminal system impact and that it in my opinion provides a limited and limiting view of what safety means and how it can be achieved um for all these reasons I hope the commission will reject the proposed amendment that would require sentencing judges to consider historic group rearrest data when deciding whether to Grant a downward departure thank you so much for your consideration thank you Professor Collins Mr a lot thank you very much for the invitation um I really appreciate the opportunity to provide you with information about crime in the demographics of criminal offending and victimization in addition I also want to highlight findings from a long-term longitudinal study that I've been involved in over the life course that I believe is relevant for your considerations of youthful individuals my first point I want to make is facts matter make sure you sure make sure you're speaking up we won't those people way back there to be able to hear you yes I I decided to put water on my papers instead of in my mouth so struggling here a little bit bit but I'll do my best to okay that's all we struggle on this side of the table too we we'll we'll trade places so my first point is facts matter facts are the foundation for Effective policies to reduce crime what does research tell us about crime criminal offending and criminal victimization one of the major developments in the last 40 years in criminology is the recognition that there's no single cause or risk factor for criminal behavior in fact there are multiple Pathways to Crime we also know from many studies that chronic offending begins in childhood and early adolescence chronic offenders in particular have multiple risk factors in their background for common law crimes the known patterns of criminal offending are remarkably stable across age gender race and socioeconomic status crime especially serious crime is the province of the young uh in the aggregate crime is most likely to occur between the ages of 15 and 25 crime especially serious crime is heavily dominated by male offenders the relationship between race ethnicity and crime is complex on the one hand the majority of offenders who are arrested or self-report crime are white however crime is disproportionately concentrated amongst blacks and other minorities when examining rates of offending taking into account population size this is especially case for crimes like homicide and robbery like race the relationship between socioeconomic status and crime is complex we also know from more that the more serious and frequent offending occurs amongst those in the lower socioeconomic status again this is the case for crimes like homicide and robbery like criminal offending patterns of criminal victimization are also remarkably stable across age uh gender race ethnicity and socioeconomic status there's an infers relationship between the age of the victim and the risk of personal victimization relationship between age and victimization is particularly strong in homicide aggravate assaults and robberies victimization rates for males are considerably higher than comparable rates for females and the rate of violent victimizations especially aggravated assaults and robberies is greater for blacks than whites the black white rate disparities for homicide victimization are especially striking as income goes up risk of personal victimization goes down in some criminal offending and victimization are not randomly distributed across persons and places my second point is that it's important to consider crime Across the Life Course since 1987 Robert Samson and I have been leading a long-term research project examining continuity and change in criminal offending from childhood through old age two findings from this from what is considered to be one of the world's longest longitudinal studies are especially relevant here if I could turn my papers that are totally wet I'll see what I could do here not really the two findings that I want to talk about in a minute bear with me chairman you know what I'm just going to go for memory the two findings that we uh I want to talk about are one we know that crime occurs early in childhood and that those who are most likely involved in childhood and Adolescent crime are likely to continue crime in adulthood however I want to make the point that those background factors in childhood are not predictive of later criminal offending I want to really challenge the idea of what I would call childhood and adolesson determinism we know that people change over time and it's important to think about that the second finding is we do we did learn in our study that people could get their lives back on track and this typically has happened through things like stable marriage uh stable employment military service in behavior in in neighborhood change uh and so those those things seem to be important in terms of understanding how people change over their life course with respect to their criminal Behavior despite having a whole host of risk factors in early childhood the last point I want to make is that I think that it's important for you to give serious consideration to the proposed amendments regarding youthful individuals uh on the one hand we heard earlier about the importance of Neuroscience in particularly in thinking about how kids make decisions and their ability to resist peer influences but secondly more important I think our longitudinal study our prospective longitudinal study shows that the effects over the life course shows that many offenders uh desist from crime and it's important for the criminal justice system to embrace the idea of Behavioral change going forward finally I will say that if you do decide to in Institute the proposed amendments I encourage you to do rigorous research on their effects unfortunately we have a la history of Criminal Justice reforms leading to unintended negative consequences going forward thank you very much thank you Mr La questions from the pan U commissioner rusi is ready thank you so much U Mr chairman and thank you all for being here it's good see you again miss levik I have a question for you um you um in your statement you said pretty definitively that the prior criminal record is and I think this is your words not indicative of of um future uh behavior and should not be considered at all um it seems to me on at first blush that that's inconsistent with both the prior panel that seem to uniformly say that this is very valuable information and it also seems to be inconsistent with the commission's recidivism study I don't know if you've seen it that the commission uh published on its website just in the last couple of weeks that showed recidivism rates in the high 60s and so forth am I getting that wrong or can you explain well you're definitely not getting the study wrong um and I do know I just want to say that um I know there was one particular comment that was shared with the commission um presented to the commission that I thought did um a very effective job of critiquing the methodology and some of the findings in that study so I'm going to leave it to them and for you to look at that um so I I I'm both inconsistent and I think I'm not inconsistent so I will defend the statements that I made um I think it is absolutely true and I think that the desistance studies that Dr Kaufman spoke about and the age crime curve that the prior panel addressed it is true that there is a a heightened level of criminal activity between the ages of um as Professor lamb said 15 and 25 that's where most crime occurs but the the propensity for desistance the likelihood of desistance the percentage we heard in the prior panel was 90% of Youth in that cohort of young adults in that cohort will desist it seems to me poses a dilemma and a critical question for the commission what is the purpose of sentencing the purpose of sensing has multiple it's incapacitation its deterrence hopefully it's also a bit for rehabilitation it's also a retribution but when you are elevating by relying on prior criminal history using that to elevate the potential sentence for a group of individuals who are in fact going to naturally desist my position is that it doesn't make sense it's not that I disagree with the recidivism studies it's that it doesn't make sense from a policy perspective two other points that I would make um one is that I do think and this was also stressed in the prior panel to the extent that this commission is concerned with disparities of all kinds including racial disparities the racial disparities in Prior criminal record history are abundant and that has been documented in multiple ways commented on by multiple individuals books have been written about it the other point that I want to make is that the recidivism data I think that Professor Collins point about how we sort of extrapolate from a group perspective to presume things about individuals it can also within their pockets of it that are wildly inconsistent and probably would seem unusual to you so we assume that individuals who commit the most serious offenses that's why you want to look back at that criminal record history are go are the most likely to reoffend there is in fact now research that has been has examined thousands of young people on under the age of 18 who have been adjudicated delinquent for sex offenses including aggravated sex offenses and rape the recidivism rate is 3 to 5% that group however would be lumped into this recidivism data because of the Assumption if they have a prior adjudication or a prior adult criminal record that might involve a sex offense that's not going to be pulled out as oh but this one isn't likely to be a recidivist so I think that it's just the methodology is uncertain people again are you measuring arrest are you measuring conviction are you measuring incarceration how many how many years are you going forwards or backwards I think there are questions about the reliability I think that it is inherently racially discriminatory and it doesn't make sense because this population is going to desist from crime U commissioner Gleason thank you thank you all for being here and for your oral and written input my my question um is uh relates to these these recidivism data um and we wrote and this is consistent of what we've heard from you but we wrote in one of our reism reports from June of 2022 using rearrest does not does does result in higher recidivism rates than reconviction or reincarceration and uh Dr Casey mentioned she lives in Harlem I live in a ethnically racially diverse neighborhood in Queens and I'm I'm just wondering whether we have disaggregated whether it results in higher recidivism rates across the board or whether it results in higher rates for people of color youthful offenders um we past stop and frisk in New York where there were literally hundreds of thousands of arrests of young people of color that didn't result in conviction or reincarceration but that phenomenon still exists to a lesser degree in my experience but it's not scientific so I guess my question Professor is whether there's any data out there that shows that if one were to use convictions as opposed to rearrests if one were to exclude arrests based on technical violations of supervision whether the uh the the recidivism rates would be reduced differently among the universe of folks that we study if you understand the question thank you for that question I don't know a specific study off but off top of my heads but maybe my panelists do but I think um the the question is what are we using recidivism for and who's coming into the criminal system who then gets their their future predicted based on what they've done in the past right so whether we use I think it's clear from from studies that whether we use arrest data or conviction data there are racial biases because of the structures of law enforcement um baked into those data points so people who are people of color from low-income neighborhoods are more likely to have arrest records and more likely to have criminal records whether for low-level offenses or high level offenses um and then once they come into the criminal system again they have that record that then is a basis for predicting recidivism in the future uh whether we use arrest or conviction so it might amarate some of the harms by using conviction it might be slightly more reliable metric but I think that there's problems inherent in using conviction and criminal are over Reliance on criminal history records in general um I think it's just a different variation of the same problem thank you commissioner Wong did you have well with respect to that answer uh Professor Collins uh I think your comment sort of focused on moving away or moving away from centering centering the policy away from the recidivism data at realest or the data that's tied to this are there any other institutions that sort of uh uh policymaking institution that have done what you wished you know how you wished we ought to look at it uh that's the hard question that's for you all just um I think that we're at this inflection point where there's a lot of attention to problems with recidivism data and yet we it's the data that we have and so it's easy to kind of follow this path dependence and use what we have and what we think we know about how the system operates to move forward um I welcome this opportunity I think at a time when we can gather a lot of different ideas about what else we could use I know there's been robust proposals to use instead of focusing on on recidivism to focus instead on dis desistance and what can we how can we encourage desistance instead of recidivism um I think that also it's a moment to think more holistically about what we use recidivism as a proxy for um and I think there are a lot of Grassroots movements right now looking at how we can Envision Public Safety and Define Public Safety and work towards Public Safety in ways that are kind of more proactive about addressing needs of folks and communities um before they become targeted by the criminal system itself so I don't have any one model but I think now is a great time for the commission to be listening and imagining what else we could what other kinds of data are out there Beyond just the data that we have because I think one problem with recidivism data itself is that it's backwards looking right and if so if we want to replicate the system that we have going forward a great way to do that that is to keep doing what we've been doing um but if we want a different future if we want the system to look differently in the in the in the future I think we need to look at different sources of data to Envision different Futures yes um and I think this also goes to the prior question I think that another point that we can't Overlook is that to the extent that um the use of criminal records which is all tied to the recidivism data as well also is looking at periods of confinement the the crazy thing about the juvenile justice system is that confinement is not rational we would like to think that the confinement follows the seriousness of the offense it doesn't and it's often not Tethered to what the particular child did because of the indeterminate individualized and inherently arbitrary ways in which decisions are made in the Juvenile Justice System it's a very imperfect system and so you end up having for example I can say recently in the last couple of years in in Pennsylvania about half of the youth who are incarcerated in Pennsylvania through our Juvenile Justice System are actually there on probation violations that doesn't make any sense if you're trying to look at that information as being a predictor of some type of future criminal Behavior the same is true for youth who are convicted in the criminal justice system because of the wide variability that we see across the ways in which children come into the criminal justice system so again we want to imagine we want to believe that the system is logical it's not that logical unfortunately we have a lot of work to do in the Juvenile Justice System um but those the ways in which the system is illogical will create the same kinds of arbitrary outcomes I suggest in the criminal system in the federal system if you continue to rely on that experience as indicative of future Behavior I have a followup uh and thank you I was I was struck by you uh when you open you talked about the 51 uh uh systems Patchwork uh uh the 50 states and DC and whatever else I guess uh and you also talked about the unbridled discretion at every Le level uh take us through all the well not all but as many what are those discretionary decisions that are made because I think about something that happened uh uh back in my home state uh just not just recently uh a mother is in in some shop or some somewhere left her 10-year-old child in the car by himself 10 year-old child has to relieve himself gets out police arrest him uh uh the judge uh says that that's fine you know orders B just a whole lot of things uh so tell me about this unbridled uh discretion at at those levels that uh persons who are in Authority can exercise that might result in criminal history points for the child yes thank you for that question judge Reon I know exactly the case that you're talking about unfortunately received a lot of national attention um so it begins with arrest um as you've heard from um the other panelists communities of color are overp policed they over surveilled they are more likely to be arrested at the point of arrest that's a discretionary decision by law enforcement once they are arrested there's another discretionary decision made by the prosecutor whether or not to charge or in some jurisdictions where they may have robust or not robust aversion programs whether or not to divert entirely discretionary no one is checking that determination once the child comes into the juvenile court the decision first of all whether or not to detain that child very discretionary very vague standards that determine whether or not an individual child is going to be detained there's lots of research that suggests that children who are detain pre-trial will have worse outcomes as they travel down the journey through Criminal Court when they are before the judge we like to think again um I'm kind of like the the the very negative person here we like to think the system works appropriately but when you are before a juvenile court judge in juvenile court it's not it's not so much about did you do this thing that you are charged with it is often a focus on what is in your best interest still in 2024 what are your best interests what are your needs do you have mental health needs that I should perhaps be tending to what is your family situation are you able to return home to your family these kinds of considerations are in the judge's head often not all judges that's what makes it a patchwork some individual judges will be more fixated on what is happening in the child 's life then perhaps what the actual crime or circumstance of the of the offense might be whether or not to then incarcerate the child to place the child on probation to possibly give them a some kind of um kind of consent decree where they might be on probation for six months and then have the charges dismissed those decisions probation incarceration or short-term supervision with dismissal are highly ially charged and we see enormous racial disparities in which kids get to go home and which kids are placed and in fact I think the numbers are around 9 to1 for black youth who are more likely to be incarcerated in the Juvenile Justice System um who gets out there because it's an indeterminate sentencing system there is no rule about when a child might actually be released from incarceration except that at some point juvenal Court jurisdiction so in almost every state it ends at age 21 they will certainly all be released either from incarceration or from supervision by age 21 but between the ages of 15 17 19 21 that is a very subjective decision about whether or not the child has in fact met the so-called requirements of the program or the expectations of the program or has been rehabilitated in the eyes of who it might be a judge it might be a parole board type situation it might be an executive agency that is running the juvenile justice system in that state and their employees and officials are making those decisions so it is at at every step of the way there is so much discretion and individualized decision-making and I just want to underscore it's really not 51 different juvenal Justice systems in this country the fact that the judge in the particular jurisdiction County I assume in Mississippi decided it was okay to arrest that little boy it may be there was another judge in a different County who wouldn't have done that we see that every day across the jenal justice system there is no uniformity in how judges perceive the children and the conduct before them and so I can say in Pennsylvania we have 67 counties we probably have 35 different Juvenile Justice systems some behave more or less the same some not so much and so so I just think it is you're you're looking at a very challenging environment from which to draw useful information in predicting behaviors with extraordinary consequences because what you will do with this information is to increase sentencing of young people and I think we all know certainly in the Juvenile Justice System but there's evidence as well on the criminal justice system that that incarceration does incapacitate people it does not necessarily rehabilitate them thank you Vice chair Murray and vice J mate um I had a question about sort of relative uh rates of rearrest I mean the in particular I think you probably know that we always use I mean using rearrest as proxy for recidivism is not new to us that's how we've done our data for a long time just because it's what's available um and you probably also know that last year we made made several sets of prettyy significant reforms to criminal history um in particular we discover that folks with zero criminal history points had markedly lower um rates of rearrest than folks with one criminal history point and so we gave them a a sort of a break right a lowering of criminal history um and similarly with folks who were on status um we saw a lowering uh a lower recidivism rate as as measured by rear and I'm wondering if you think that's uh kind of a legit thing to do do you think it's it was okay that we were using relative rates of rearrest given all of your critiques of rearrest rates um or do you think that that was a big mistake thanks oh my goodness um uh I'll lead with I I come to this I come to uh Academia as a former public defender so I'm never upset seeing people get shorter sentences for a variety of reasons um but including the impact on that person's life um I I think conceptually though I want to think about how we frame that right so if we think about if it if it's giving using rearrest rates to give someone a break also might be seen on the flip side as using rearrest rates to justify longer sentences for other folks so if we frame it in that way then I actually do think that there's a conceptual problem with what we're doing now the impact of getting some folks shorter sentences I I am on board with because of all the harsh impacts of incarceration um and the consequences to people in their communities um but I but I do think we need to be cognizant of whether we're doing that justifying that by also at the same time justifying longer sentences for others which I think can be a problem thank you all so much for your testimony today and for your written statements as well they're very helpful um Miss levic I I have a question for you uh based on what you were talking about today and some of your written testimony about the wide variety of practices you spoke a lot about the transfer and the the um direct files uh but also in your written work about the variety of of um practices in in juvenile courts in terms of due process quality of interventions and things like that and as we think about that background and how the best way to handle that in a guidelines manual ual going forward um it comes to mind that another area where there's sort of a wide variety of practices that way um is tribal convictions and the Commission in the the manual has said those don't count as a rule of course courts can consider it and they can go above and below the guideline range but it's not a a factor in the the guideline calculation um and that is another situation where there are those wide variety of practices and I was curious about your thoughts on whether which which of those models the counting or the not counting given the and and whether those are similar or not for purposes of our analysis so I support not counting I think that makes sense um for the reasons that I've said and um you know I guess I would just I I would add that um the the disparities and the variations that we see in the Juvenile Justice System I kind of talked about process um we also have to understand that there are several States across the country that have no lower age of juvenile court jurisdiction so in New Jersey who would think New Jersey was you know not a relatively Progressive State I I tend to think it is they have no lower age for juvenile core jurisdiction at all a four-year-old could technically be arrested in New Jersey and have a juvenile record um there are other states that have an age of 10 or 12 or 14 um so there the lack of consistency about who comes into the system I think is is indicative of how your job is to try to make policy that necessarily affects a wide group of individuals more or less should affect everyone the same that's the goal and yet when everyone coming into the system isn't remotely the same because of the wide variations in the system from which they are coming it seems to me it complicates that ultimate goal of creating this kind of uniform response um the the other thing um that I would say is that to the extent that the prior panel um and I know that Dr hob particularly talked about he rais the issue of risk assessments so our recommendation is to of course in specifically reference youth in Part B but to not include other specific things that you should consider so that you are not tying the hands in any way of what judges can appropriately consider when they are making these kinds of sentencing decisions and upward departures or downward departures es but there's no reason why a judge couldn't use a risk assessment if they wanted to it seems to me if you're considering age these are things that you could look at and I think it all that all of the both again you heard a lot of protective factors and risk factors all of that is information that it seems to me an individual public defender might want to bring into the equation and into the conversation at sentencing you shouldn't be foreclosed from doing that relying on Youth and Youthful characterist ICS I think opens the door to do that but again by not specifying I think it doesn't tie the hands of Judges judge can I just commissioner W oh I'm sorry I Professor Collins I take your point about the difference between rearrest and reconviction but I wonder if for our purposes as a sentencing commission and at the point in which our policies have an impact you know we're obviously talking about the point of sentencing when someone has not only been rearrested but is being sentenced for a conviction and the question would be then to what extent should a prior conviction not a prior arrest but a prior juvenal conviction count and so when we see the sort of glaring data that we have which is showing you know the commission's uh report just said that about 67% of those defendants with at least one criminal history point for juvenile adjudication is likely to be rearrested within 3 years compared to 43% I mean that's a 23% difference right right 67% with the juvenile Point versus 43% I definitely take it that we should take that with a grain of salt those were not convictions there was probably a cause there wasn't a conviction but isn't that still a really relevant data point for a body that has to evaluate dangerousness and we're all grappling with the same dilemma of differentiating those that are likely to desist from those that are likely to reoffend that's a big difference 23% and I just wonder if we should be discounting that or just taking it with a grain of salt in your view um may ask a clarifying question um are you talking about using an arrest record from that individual being sentenced or kind of the arrest statistics as embodied in the policy statement because I I think those are different questions no I just meant the fact that we are trying to assess the commission itself on whether our criminal history guidelines whether that counting of a juvenile point is doing any work and the the two relevant compar groups one where it's counting there's a juvenile Point versus the broader study group it does appear that there's a difference and that counting it is differentiating a particular group that is likely to recidivate in a meaningful way as compared to a regime in which they're not counted and I just wonder if not withstanding the concerns about over relying on rearrest data you're saying we should not even consider that at all um at the very least take it with a huge grain of salt I would say but I I do have concerns about using rearrest statistics especially if it's rearrest statistics of a general population looking at one single characteristic that they all have in common to make projections about that individual's future um most young people are not arrested um and I think we heard from the from the previous panel um that many young people actually do desist right and so I guess are we focusing on the many who do desist or the ones who are rearrested and so I think these are all these are all valid questions to be asking and I think at the Le I just hope that the commission keeps in mind the limits of the data that we have and um and the ways it's structured by the choices that researchers have made um and so I would lean towards discount not considering rearrest group rearrest statistics but if you do choose to to keep them in just keeping in mind what the limits of those insights are and considering how heavily we might weigh them um in making very consequential decisions for individual dependant I would just Echo that I think that yeah it feels like a big difference 40% versus 60 some per but it's a rearrest data it's not conviction um we know that the uh again the disparities that drive that rearrest data and and the fact that that even if they're rearrested the desistance numbers are so much more powerful from a policy perspective the concern is Public Safety at the end of the day whether or not we are keeping Community safe and if in fact 90% of this cohort is going to desist that's a very powerful statement about the potential for Public Safety across the country I think some of the reasons the data has focused on rearrest data as posted a reconviction is that data is more readily available if there were comparable numbers or statistically significant numbers showing a difference between those two groups as far as reconviction would that would that be Rel iable data for the commission to rely on well I think we can assume that it's probably not available right I mean we we're not seeing it number one and number two again I think the desistance numbers argue against your being able to find that data BL I I apologize for jumping in before but I was puzzled um Miss livik by your response you were I I think you were saying that the commission should not outline in the departure provision that we're considering all a number of the factors that a court should consider again that seems inconsistent with the last with the advice that we were getting from the last panel and I'm just puzzled why you would suggest that we don't consider the things that for example judge rrepa was talking about about whether someone is living in a situation where they're not get enough food or whether they're cognitive development or emotional development or psychosocial development why wouldn't we give that kind of guidance to judges as they're considering whether or not to vary up or down to part up or down for for a youthful offender I think my assumption is that if you in fact explicitly require that youth and Youthful characteristics be a part of the sentencing calculation right now it's just age and age as I understand understand it historically has tend to tended to favor older um individuals who are incarcerated so it doesn't really focus on the youthful characteristics of the person in front of the sentencing judge my worry and this is certainly something that I believe is shared by the experts who testified at the prior panel Dr Casey and Dr Kaufman research isn't fixed it's Dynamic it's not static and so to the extent for example that the guidelines specifically reference utilizing neuros neuroscientific studies we oppose that because I don't know what the next 5 years will bring in terms of that research other psychological or behavioral research and our concern was again in tying the hands of sentencing judges about the extent of information that they consider My Hope and perhaps this is an idealized hope is that when you are now when when federal judges are now specifically presented with the responsibility to specifically consider youth not just age generally that the kinds of factors that judge restrip are identified again those kinds of socioeconomic factors Community factors family factors the protective factors the risk factors hopefully all of that will be presented but prescribing it what have we left out that that's the concern that I'm raising not at all that I don't think that information is highly relevant to the decisions that sentencing judges are being asked to make thank you all uh ladies and gentlemen we appreciate your testimony uh thank you for your Co comments as well that you submitted [Music] [Applause] [Music] our third panel will provide us with a perspective uh the executive Branch's perspective on this issue that view will be presented by The Honorable Matthew Graves who serves as the United States Attorney for the District of Colombia he was nominated uh and uh nominated in 2021 by President Obama OB B President Biden and confirmed that same year Mr Graves joined the US attorney's office as a lion a USA investigating and Prosecuting a wide range of criminal matters including violent crime drug trafficking and illegal fight firearms possession Mr Graves we're ready for to hear from you whenever you get started I've already promised commissioner Wong that she gets a chance to ask the first question the middle question and the end question you may proceed sir thank you for the opport beting discuss it Bears noting that when we discuss violent crime committed by juveniles we are talking about an exceptionally small subset of the juvenile population FBI 2022 arrest data suggests that only about 0.1% of the juvenile population is arrested for serious violent felony let alone convicted of one nevertheless this 0.1% has played an outsized role in the violent crime landscape in the District of Columbia for some crimes in the district such as armed robbery and armed carjacking the majority of people arrested are juveniles by way of example in 2023 more than 75% of the individuals arrested for armed carjacking were juveniles regarding youthful adults in 2023 64% of the adults arrested for armed carjacking with a firearm and 58% of the adults arrested for armed robbery with a firearm in the district were between the ages of 18 and 24 at the time of offense with these offenses there are very few people arrested who are not juveniles or youthful adults for instance of the 182 people arrested for armed carjacking in The District in 2023 just 15 were 25 or older at the time of offense in light of these facts we have some overarching thoughts first while the science is clear that people's cognitive Control Systems which help modulate recklessness and impulsivity typically continue to develop Vel into the mid 20s no basis exists to conclude that this is a primary factor as to why a crime occurred let alone a dispositive one again 99.9% of juveniles were not arrested for violent crimes in 2022 second the circumstances of the violent crimes committed by juveniles very widely ranging from calculated and cold-blooded acts to random disputes that inexplicably escalate to extreme violence we consider such Circ irst ances when deciding whether we should use our Authority Under DC law to charge 16 and 17y olds as adults for certain violent offenses one case Where we exercise this Authority was a first-degree murder prosecution of Malik Holston who in 2018 at age 17 hunted 15-year-old Gerald Watson and shot him 16 times the evidence introduced at trial showed that Holston targeted Watson who had simply gone outside after school to play basketball because Holston was looking to retaliate to retaliate against someone anyone from Watson's neighborhood compare this case with the well-documented case where a 16-year-old girl stabbed one of her friends to death during a fight that had broken out over McDonald's dipping sauces we did not prosecute that juvenile as an adult while both crimes involved the senseless death of a child there are substantial differences in premeditation and deliberation with these crimes turning specifically to the commission's proposals regarding part A and whether the court should ignore previous convictions and adjudications for offenses committed before age 18 when a defendant commits a new crime a federal crime as an adult my concern is the district is already struggling with a perceived lack of consequences for serious juvenile crimes and that the commission's actions May compound Matters by unintentionally sending a message that the federal government will also ignore juvenile convictions moreover these Pro these proposals ignore the reiv risk this population poses which was discussed at Great Lengths in the prior panel with respect to uh individuals who have one prior Point uh as an adult versus one prior point for a juvenile conviction neither the science regarding cognitive development nor the recidivism data supports turning a blind eye to all violent offenses finally regarding Part B just as with part A I'm concerned the commission's proposal will send the wrong message at the worst possible time in 2023 nearly a quarter of defendants arrested for armed robbery using a firearm in the district had a previous conviction under DC's youth Rehabilitation Act which applies to offenders under 25 we simply have a problem in the district and elsewhere around the country with a very small number of youthful adults engaging in in repeated violent criminal conduct having recently experienced a surge in shootings armed robberies and armed carjackings in the district creating what could be perceived to be a presumed downward departure for the youthful offenders contributing to The Surge risks fueling this fire I believe that the best practice is what courts already do and in fact are required to do under Section 3553 F1 considering on a case-by casee basis the nature circumstances of the offense and the history and characteristics of the defendants thank you and I look forward to your questions thank you uh Mr Graves commissioner Wong didn't take debate okay any any questions from any other other the Commissioners not yet thank you so so your letter is very different than what your statement is today and so I'm just curious about the disconnect there and um the you know your letter says the department opposes part A and supports um the research supports a more nuanced approach than the bright line provision um in the current proposals and so my question is what is that nuanced approach and um you know is there a way for you I guess you will supplement the letter that was provided because it is um sparse on detail and um very different I think than your statement today so I'm just curious about that as well I I understand the question I think the the Topline conclusion is the same both respect to my oral statement and the testimony that we oppose part A and we take no position on Part B but have some concerns and wanted to share those concerns with respect to part A I think the challenge for us is um and I hope this came through in my statement uh we do think that uh uh a number of these points including whether a particular particular defendant um uh when compared to other individuals of the same age um uh was particularly behind on cognitive development uh the nature and circumstances of the underlying offense the accuracy of the records we acknowledge that different jurisdictions have different practices and some records might be more reliable from the juvenile system than others depending on the jurisdiction all of that should go into consideration um but the bright line rules that are uh expressed in uh options one two and three uh we think kind of ignore all of that Nuance so our request with respect to um part A is um that the commission just not act on any of the options and that we effectively all go back to the drawing board and kind of think through some of these issues because there are uh incredibly important issues that have been raised by a number of the other commenters um but our concern is uh a lot of this is well there are problems with some of the data therefore we should exclude all of the data and we think this is incredibly relevant data if if I might because we've been talking so much about uh violent crime and it being a crime of the young that is true for certain offenses as I outlined in armed robbery and armed carjacking it's not true in other offenses uh so the District commission from the National Institute for criminal justice a gun VI violence problem analysis that looked at of known homicide and shooting uh suspects and victims uh what their background was and uh what they found was that the mean age for a homicide victim suspect was 31.7 being otherwise between 31 and 32 and that the victims and suspects who had prior contact with the criminal justice system they averaged around 10 arrests so I say that because I think two things are true and I think they're both getting lost uh the second point is getting lost rather and we're over focusing on the first it is very true that it is a very small uh percentage of the juvenile population that engages in serious violent crime it's an even smaller subset that reiv Ates and most desist but that if it's 10% or so that doesn't desist um they are of great concern and uh they are the people who wind up with these 10 arrests and wind up killing someone when they're 31 or 32 and I know it's hard given the state of Records but I just think it's incumbent on the commission and in turn sentencing judges to try to figure out whether the individual before them who has the juvenile record is on a path to desistance or is on a path to committing a homicide when they're around 31 or 32 like looks like we must be scared you're going to arrest us when we leave here since you have jurisdiction over this area Mr us attorney no one else wants to ask any questions I I'll choose to hear that as complete agreement with my position and happy to uh seed the floor to the next panel all right any other questions right all right oh okay sorry it was hard to make questions ahead of time for you because the statement is very unusual yes um I I wondered if the department has any there's been quite a bit of back and forth about whether it's okay to look at recidivism rearrest data or whether that data is largely useless and I wondered if the uh Department had a has a view on that as you know we put out extensive recidivism data uh a couple of weeks ago I wondered if You' had a chance to take a look at it I I did have the uh uh chance to take a look at it and agree with um the impetus behind commissioner Wong's uh questions before that is a big difference and I understand the points about um over policing and disperate enforcement and I understand that it would be more probative um if we had actual uh um conviction data um but when you see that much of a difference um that's Lally a 50% increase um I just think it's really hard to ignore that data and we have to look at the data but we have to take it with as was said in the prior panel a grain of salt and we should be thinking about all of these issues at the time of the sentencing on an individual basis thank you sir thank you thank you thank you we will now take our morning break so let's try to be back about 15 minutes please thank you back and I'd like to introduce our fourth panel which will present the uh Federal uh public defenders perspective on our proposed amendment on youthful individuals to present that perspective we have Gabriela Lea uh who serves as associate Federal defend based in Milwaukee with the federal Defender Services of Wisconsin she joined the federal Defender Services of Wisconsin in November of 2016 previously miss Lea served as a legal assistant Client Services Client Services specialist and finally as an attorney for the Wisconsin state public defender office Miss Leal we're ready for you whenever you are sorry about that when I became a mom in 2021 I didn't realize that one of the toughest challenges that I was going to have to face was learning how to face adversity in life I am not a stranger to tough circumstances I came to this country when I was about 5 years old I grew up PO I uh was a victim and witness crime because of the neighborhoods that I lived in I watched my parents hurt each other all while trying to assimilate and at the same time at a very young age try to understand why I felt so unwanted in this country I mean I thought I was pretty awesome but I learned to cope and overcome with those struggles or overcome those struggles and yet when I became a mom it became really very quickly apparent that the way that I had learned to cope was just not going to work with being a mother while I got help I really struggled and there were days where it was really hard to get up in the morning and put on a brave face but from the beginning of my day until the end of my day I had someone holding me up my husband my mother my siblings my boss my co-workers my friends I could not fail even if I tried and it made me realized that I had overcome impossible challenges in life not because I'm special not because I made the best decisions in my life and certainly not because I didn't screw up in ways that could have ruined the rest of my life but because I had people surrounding me every day of my life that believed in me when I didn't believe in myself and that held me up while I try to figure things out my clients they don't have that and it's often times the reasons that they end up in in court I live in Wisconsin where adult jurisdiction begins at 17 years of age so at 17 the law requires it's mandatory that a person is charged in adult Court without considering the P the nature of the offense or the seriousness of that offense and as a state public defender some of the toughest cas that I had were my 17-year-old clients and it wasn't because their defense was hard it was because they were teenagers and I often found myself having to parent them to call them text them reminders of court to pick them up to take them appointments to help them fill up paperwork it also felt really wrong to know that I was making decisions for them because when I told them about option A they would say okay let's do option A and then I'd say no wait there's also option b and they'd say okay let's do B and when I said no you have to think about A and B and pick they would inevitably tell me to tell them what to do they would ask me what do I do they weren't old enough at 17 to understand the significance of the decision that they were making and the impact or the long-term impact that it could have on their future so they just went along with what I said the adult in the relationship my young client's lack of autonomy also presented unexpected issues in their defense because while the court system treated them like adults the rest of the world continued to treat them as if they were children I once represented a client who was uh placed in a group home because his mother was homeless and when he was there or while he was there he was diagnosed with PTSD and they knew the medicine that could help with his symptoms they couldn't give him the medicine without his mother's approval and because they couldn't find his mom they didn't give him the medicine it wasn't until he turned 18 and was able to make those decisions for himself that he finally was able to get that help you see for the same reason that miners are not allowed to drink or Vote or join the army they also can't handle their own mental health prescriptions the guidelines assume that an adult conviction is a good proxy to assess the serious of the offense there's an assumption that if that if that child is an adult court that means that the offense was really serious but I can tell you that it's not not only because of laws and practice in my state but also because of the advancements that we have in neurobiology which confirm that a poor choice made by a juvenile should not carry the same culpability as that same poor choice made by an adult the vast majority of my 17-year-old clients that I represented in State Court had cases that involved fighting in school which was charged as a felony child abuse a crime of violence stealing a neighbor's game console charged as a felony burglary which is also a crime of violence in my district until 2019 fighting in a Detention Facility charged as a battery to a prisoner also a crime of violence taking Grandma's car without permission a felony car theft the same types of crimes that you would expect from an individual whose brain development has not reached the same clar and rational thinking as that as an adult and I want to be clear juveniles have and absolutely can commit very serious offenses our comment and the testimony that I give today in no way intends to diminish the seriousness of those offenses or the impact that it has on the victim or of their communities the point that I am trying to convey here is that the weight of a person's prior juvenile record by a federal court at a later sentencing hearing should be tailored to that individual person in his unique case option three advances that goal it's the choice that eliminates disparity based on arbitrary factors like state of residence the choice that addresses the shocking and disturbing racial disparities that is currently perpetuated by the current rule the choice that recognizes the evolvement of our knowledge in the human brain and it's the choice that I believe makes certain that the court imposes a sentence with a good accurate measure of the person's level of cability and their unique characteristics individual to that person that information is going to get to the court it's not going to be ignored it's just not going to be measured by the guidelines it's not going to start off people in different footing based on where they live in that way a unique and individualized uh consideration of that person's prior criminal record we can achieve a sentence that is more uh that is sufficient but not greater than necessary I thank you for your time and I welcome your questions thank you Miss leop she welcomes your questions I have more answers if you guys go ahead thank thanks for being here so should judges should judges consider juvenile convictions at at all and if so how should they go about considering these juvenile adjudications so I I I work in a district and I think that I have the privilege in in practicing in front of some judges that take their jobs incredibly serious and and really do try to do a good job I also work with a probation office that has the same um approach to the cases and goals and so the PSR reports that I receive have um not just names and labels but if they have the records They will include a short summary of what that of what that case involved or that arrest involved even when a there's no conviction or even when there is no uh Point assess to that conduct and so what ends up inevitably happening is that the court doesn't look at it and pretend that it it's not there they they look at it and then we fight about the weight that that material has the the reason that the guidelines don't work in my district and that they are not a good guidance for the judges that we have is because we are an outlier in in the country um and I know that I'm I'm not our I guess our district isn't alone in the issues that we have in in along because there's three other states that start the adult jurisdiction at an earlier age but we also have jurisdictions that change their laws more recently and so we have people even within the same districts that have points counting in some cases but points not counting in other cases merely based on when they had that conduct um and so what happens is the the starting point is not even the starting point is not the same and so they're not useful in that regard and there's a lot of fighting about where that Baseline should start because there's no uniformity so if the guidelines are trying to start if the guidelines are trying to capture as someone else said like where do where does everybody start off at unequal footing I can tell you that they're not starting off unequal footing in my state and it creates not only disparities from other states but also disparities even within our own within our courtrooms about how a judge is going to to treat these types of convictions um some judges as you heard will really take a look at the circumstances and weigh them and hear arguments others just say the guidelines say this and so this is where I'm starting where I'm starting off um so it's not uh actually uniform and it and it's affecting people differently in different ways I hope that answers your question so I think that the more direct answer is judges are absolutely considering and and the the difference is how to weigh it and I think that the option three furthers that it it it forces judges or it tells judges to consider it all and weigh it appropriately yes thanks much for your testimony I I'm trying to sort of wrestle with how to make the the way the guidelines are more qualitatively useful like it seems to me that you know all the all the criminal history is in is kind of wooden all the criminal history is out is kind of wooden it seems like what we want is something sort of textured where we explain to judges kind of what you just explained to us right which is that like sometimes Gile educations mean all sorts of different things in Wisconsin you're an adult right away like you know I mean obviously you couldn't put it this way but some uh juvenile crimes are very serious and indicate going forward that um something really serious is happening and some of them like really overstate things and indicate that someone doesn't have a safety net can you think of a way I mean I guess the maybe the obvious way is just like write something really long in 5H 1.1 but can you can you think of other ways to add that kind of textured information in in a way that would be helpful to judges um I think that where I I'm struggling to answer that question is I think I'm assuming with a starting point that the judges are doing that that they're looking at the PSR and that they're not um pretending that information that gets to them is not there because they can't um and and I also I also struggle because in again in my district the prosecutors look at that material and they say you know this is this is an outlier so it should be more um the the reason that this that the current Rule and that I think that option three kind of does State take a look and tailor it for for what it's worth everybody starting at same footing um we're getting rid of all of the things that could um result in Desperate or different um results without without any um Good Reason um and if when that information is relevant and when it is presented then the judges can just consider it I think that option three does it which is why I'm I'm a little um it's a little hard for me to answer I'm sorry I don't know that I'm capturing the question it sounds like you think the texture is already there from the PSR like they already understand that not every of ofen knowledge education is the same as every adult education they understand the kind of background that's going into I think so but I think that the problem with the way that it currently is is that the rule is saying count it the rule is saying you default low and go high or default high and go low right but like the rule is saying add three points to my 17-year-old State clients but not three points to someone from Minnesota or Michigan who had that same you know conduct and just didn't have that adult conviction and so the judges are struggling with the rule says apply it and I'm saying this is overstating it this is overstating it and it's making it's making the judges either having to make a choice between following the guidelines or not having any starting point to begin with so that's why the current rule is problematic they either way there's going to be disparity if the judge chooses to follow the guidelines they are doing it with the knowledge that it will be a different result and higher than someone living somewhere else or they're choosing not to follow the guideline and then we have no starting point and no guidance on how to how to well I guess that's why I'm thinking about a more robust 5H 1.1 to tell them when they should be departing I mean my experience of sentencing which I'm sure is much less extensive than yours is just that every every courthouse and even every courtroom has its own kind of culture in terms of like what whether you're a below the guidelines or a bottom of the guidelines type um type place and you would think that the culture could adjust to that right the culture could say oh well we're in we're in Wisconsin and Wisconsin everyone 17 and above is going to be getting points so if we want to be um particularly if there was something in 5H 1.1 that said like maybe take into account whether your jurisdiction is one that counts people as adults more more yeah I think that I think that it makes a judge's job very difficult because they either um because they because they're trying to be fair and ignoring the guidelines and what they're saying do um takes it out of that realm um and so if the guidelines are supposed to capture so there were a couple of of commentary that were made today um the individual that present I'm sorry I don't remember his name um that testified earlier he's he he kept talking about um exceptionally small and and very small group of people so the exceptional part means that they're outliers the guidelines are not supposed to be capturing the outliers they're supposed to be capturing the heartland of the individuals that come before the court and so if if the guidelines are capturing people more people than they're intended to then that guideline needs to come down so that everybody starts off on equal footing um we don't have that and so it's going to depend on because it's not just the culture I think that there are places I mean there's times where I I make arguments and I know that the judges won't care about the issue the way that I do and and if the if that issue is because there's a rule it's it just there's no there they're being told to follow this right to consider it that that's where they have to start um and so that's why there's a need to bring those down so that it's not just like if you want to capture an outlier group then there should be a new rule created for an outlier group but this rule captures the entire nation and even though I'm I can't I don't live in DC but I certainly I I see and hear the news I I'm not going to say that there's not um you know a spike but that's not the case for the rest of the country and we we shouldn't have a rule that captures the entire country when just a smaller jurisdiction is having those issues I hope that answers your question I'm sorry yeah uh you indicated that in Wisconsin as 17 year olds mandatory to go to adult Court yeah is is is that for every type of crime every felon all misdemeanors too all crimes if you're arrested and you're 17 you are an adult mhm oh okay uh and and and with respect I you gave us some anotal sort of talk about representing the young person uh who you know you tell them option a option b uh I think you were focusing in primarily on a young person 17 18 or so uh what's your experience in representing persons who beyond that age if if you have any uh you know between 18 and 25 um I do and um particularly with the 17-year-olds it's it it it made me not have children for a very long time and it also uh confirmed my decision to not work in a juvenile system um because because of the the issues that everybody here is struggling with um you can have a per like my niece is is um she's amazing she's 16 years old she's like straight A student she's involved in all the things and sometimes she she does things and and we're all like were you thinking what like what what cuz you expect her because she's so smart and she's so reasoned um and then she does these like really wonky things that are not well reasoned that are not um in alignment with that with who we know her to be which is a really smart person and and the answer to that is because their brain is not fully fully developed yet right that right stuff that they're talking about is still not there and so she's not intentionally or purposely making these poor decisions it's just she really isn't thinking because she's just not there yet and so trying to work with someone that is in that frame of mind and asking them to make decisions about entering a plea or going to trial and understanding what that conviction is going to be like in the future they can't think beyond that day and so understanding what that looks like 5 10 years from now is impossible and so it does feel really um wrong to work with that population because I am making decisions for them because I know how I I am I am trained to persuade federal judges so of course I can persuade a young person to do what I want them to do and sometimes even when I'm not even trying and so it was it was hard for me to practice with that group of people because I recognized that I had that impact in their cases and in their lives and in their decisions and it was often a a very stressful case for me again not because their defenses were hard their their defenses were on you know fighting in school wi Wisconsin or at least Milwaukee had cops in school for a long time and so it made that path very easy because there are 17 year-olds and 18y olds sometimes 19-year-olds that are still in high school and so that path was there it they did away with it but now there's legislation from last year that they're putting them back so um it's a school fight and so when I go in front of a prosecutor in front of a judge that defense is not difficult it's not complicated but all of those issues that I am aware of which is that they're young and they don't understand and that I am making decisions for them really was just wait on me like there's a reason that I'm not a judge want those kinds of decisions and impact on on people's lives um and and I definitely had that with with the young population that I worked with j b thank you for your submission it was very detailed and very helpful um it seems to me that two things are fairly clear from the brain science and the recidivism data and a number of our panelists and one is youthful offenders have far less impulse control um they're less able to appreciate the harm that their actions cause to others they engage in Risky decision making so you know as a sentencing judge we have that and the other is youthful offenders with juvenile records have what appears to be maybe the highest recidivism rates so we have that as well based on some of the recent data that the commission released and so to me The Logical conclusion of those two things is not to disregard documented juvenile convictions including adult convictions um you know while they were still um under the age of of 18 and lower their guideline range that is 1 plus two does not logically correlate to me to lower sentences necessarily and release while they remain quite young um in some instances you know the the CLC made a number of points in their letter and you know one of those is it seems like option A is inconsistent with the statutory mandate that we as sentencing judges have and that is to consider um you know the history and characteristics of each individual and part of what I find inconsistent with advocating um for option three is that as a sentencing judge under the 3553 a factors we take in uh we consider a lot of information about the individual trying to individualize that sentence and make it fair specifically to that person and so those arguments that you're making about you've got to get behind those juvenile points you know we've got to talk about what what this conviction actually was about what their home life was about as a sentencing judge I accept those arguments and um often times those considerations are based on scant or little sort of um documented evidence right that there was a history of trauma or that a codefendant abused that person but but I accept that and I because I I I you know believe these um uh that these history the history and characteristics of these defendants and then and it almost always inur to the benefit um of the individual being sentenced because they have these compelling stories much like your own personal story um which I appreciate it very much and then at the same time to tell the sentencing judge that we should not be scoring um you know Juvenile and adult adjudications seems really inconsistent to me that I would accept um certain information about the history and characteristics of the defendant which is significantly mitigating but at the same time I should not consider or we should not accurately score documented convictions and so you know I'm looking to you to try and reconcile that for me and as a second Point um one of the points that the defender's letter made on point n on page n was that um 4A 1.2doubles data does seem the guidelines are appropriately scoring and differentiating because um for instance more than half of the juvenile two-pointers were violent offens offences compared to about onethird of the onep pointers then defendants with the twoo juvenile adjudications had a higher three-year arrest rate 72% whereas the onep pointers 63.5% so it does seem like and of course the two-pointers recidivated um faster than the onep pointers so it does seem like the guidelines are doing some of that work in differentiating um accurately between two pointers and onep pointers so I know that was a very long question one is a bit one is a general question about you know here we are as sentencing judges um and as the Commissioners how you know why should I accept your argument that um without any you know empirical data that I should consider factors that are mitigating to the defendant but should at the same time disregard con actual convictions so that's just sort of a big question and then the second is it does seem like that the guidelines are appropriately scoring two points versus one point and then also discounting these juvenile convictions with just the five fiveyear look back and things like that that are already in there as protective measures so anyway I have so many answers good I'm so glad I need them I I I think that you you demonstrated that that judges do look at these psrs and really try to understand the information and the circumstances of that individual person and try to come to a fair fair decision I I think that the first point that I'd like to address because I I kind of already talked about it is that in so for Wisconsin um IND or Wisconsin Georgia and Texas the the guidelines don't reflect what they reflect in in your District which is um that those convictions are going to be made by an adult an 18 or at least an adult by the by the system which is 18 years old so right off the bat your district is different than mine and one of the questions that you started out with was why should I accept your um your argument for mitigation of a lower sentence um but not these numbers it's kind of the point that I was making which is that I'm begging and pleading please take a look at this information about the juvenile um uh the juvenile record that we have here and lower the criminal history category because they didn't have a trial or they didn't have um the options for for juvenile so there was discussion about this before but Wisconsin has 72 different counties and in each one of those counties there's different juvenile systems and the options that they have for that juvenile person is going going to be based on the funding that that county has and the resources that that county has and so if that if one of the poor counties that we have in Wisconsin does not have resources does not have social workers does not have mental health processes does not have conditions that can address the issues of that minor that minor is very likely to end up in in jail um because of a lack of resources or a lack of options rather than because your crime was so serious it's just the only tool that that Court may have is that jail um so I I I think that that was one of the points I was trying to make earlier is that if the guidelines are saying this is how it should be treated then I am in a position where I'm saying please please please this is different than in than what the guidelines are are capturing the other point is that um I gu I don't know there's been some discussion and I know that the panel before me had um a lot of answers about that data I when I Was preparing for this and I was looking at it one of the things that struck me was that the data provides information about rearrest not about convictions and and not about like what happens after that rearrest and so we're looking at people who are going to be arrested for supervision violations like missing appointments and those sorts of things in fact I think that the graph shows that those are the highest ones and even though that's the case we're looking at the the material seems to be treated at times as if it's um it is indicative of new crimes or um the person like can't is committing violent offenses and we're talking about not convictions not charges but rearrests based on a probable cause which is not anything but probable cause is like probably a crime and probably committed by that person um the other thing too is that the age that that rearrest data is capturing is going to naturally um be young people and so it's going to capture that same group of people um that we've been talking about of the person that is going to be impulsive and not making great decisions um I also don't so I I don't know that I I agree with the premise that that recidivism data is telling us that young people are committing new crimes because it's not convictions and it's not charges and it's including probation and supervision violations um and so I don't know that that would be empirical data supporting a premise that the person is more dangerous more likely to commit crimes um I think that our comment on page 28 talks about that quite a bit and I also think that the juvenile Law Center provided some pretty thorough analysis on some of the issues that should give the commission pause or at least like take a closer look um to rely on that than that data to to say that it is these young people making and committing new crimes I think that on I I do have a second point on that because even assuming that that was the case that we do have more recidivism from this group of people there are other problems that the rule is not intending to create but but does so from the beginning based on the review of the material that I I received um I think it like I what year was this like 18 or not 18 1987 I think is when this rule was created and even at that time there was a lot of discussion that um there could be a potential of disparity in the results of how this rule was impacting people because of the the nature of the because the juvenile system in began as a civil system in trying to help the kids the children in making better decisions at a point where they really can't make better decisions for themselves and so there was this kind of um suspicion or or thought that there may be problems with this rule but at the time they didn't know that there were problems with the rule and and now we do we know that um there are unwarranted disparities based on the jurisdictional practices which is what we were just talking about um there's going to be um like in Wisconsin the 7 two different counties and the way that they handle it in preparing for this I I met with the um former uh head of the juvenile division and in this is one of the things with labels that's a problem um I would say okay like sentencing she be like no no no that's disposition so there's all these words to basically try to mimic um but there not calling it what it is they're not calling it charges they're not calling it convictions they're not calling it sentencing even though that that's what it is um but the way that they're being treated within those individuals counties and the way that they're handling it is going to be different and so the information that we are receiving that you as a judge are receiving um I think you probably start off with the point of of thinking oh everybody is uniform everybody's being treated the same way everybody has the same options the same opportunities perhaps and and they don't um and either so you you either get information from the lawyer or from probation office or someone saying like no this not the case but if there's no records um and people can't get them then you can't get that information and so then again we're making a lot of assumptions when we know that there are a lot of differences in how juveniles are being treated I think that the other issue that we um come into is of course the the the racial issues um somehow we ended up with 88.8% of people people who are affected by this rule are black and brown kids um that is a really high number and and it is not because black and brown children are committing more crimes or different crimes it's just the way that their that that same conduct as their non-white counterparts is being captured and logged and labeled and it's making incredible um disparities on just race Alone um in a way that is really harmful because so I I kind of was trying to figure out where does this rule because you started out with this way of saying um the adult convictions at three points uh the you know non-adult um two points and then every other one is is one year so kind of considering like what is the impact of this rule what it especially when we know like the 88.8% of black and brown people are being affected so that adult um that three-pointer so my district is going to have significantly more three-pointers than any other District because my 17-year-old clients are being convicted and sentenced at a rate and in the system that is not the same as everybody else and you know I think that someone can say well like well if they're getting a sentence of over a year and a month then isn't it a really serious offense and the answer is no because that time frame is capturing not only the offense but also like the rearrest and the violations of supervised relas relas and and the aggregate is counted as that amount and so it can be that my client got probation from the start and so the judge said because of all of the circumstances I'm going to give you probation but then maybe they had a substance abuse issue or maybe they had housing and so then they keep coming back and then in the mean time they're locking them up and all that time is adding up and then it's going to capture those three points even though those three points is not based on the seriousness of the offense it's based on that person trying to get their life back together so there's going to be an overwhelming amount of people in my district that are going to be captured by that first by4 a1.2 D um and that three-pointer is going to be used to make them career offenders it is potentially going to make it so that they're not going to be eligible for the safety valve uh 70% based on the data that you received are going to increase the criminal history category because those points are going to bump them up to the next one which means that their sentences are going to be higher to start off with and then it doesn't actually end there because those points are all also going to impact the Bop designation of where they go and so these individuals are also going to be at higher security facilities and again all based on the way that Wisconsin is treating these 17-year-old children um the not adult the lookback period the um 60 to 12 months has the same impact in terms of the um criminal history category being bump bumped up um the sentence is being higher and also the Bop designation security also being higher um the any other within 5 years is one point again we don't we're assuming excuse me we're assuming that the conviction and that the criminal conduct um it was severe um enough that it garnered a point um but it is ignoring um the disparities and the way that that person was treated where they were con they were arrested and convicted the options that that jurisdiction had um the labels that they using um in that particular um in that particular place um and I was in a roll I just forgot what I was going to say because I think I was going to answer one of the questions that you had um which was um maybe my question about I mean again you know the the guidelines that the recidivism data that we have indicates that two pointers are different than onep pointers because their recidivism rates are higher and their time to recidivate is more compressed the more points that they have and so that's my question and I understand we have a patchwork of 51 jurisdictions and you know to some extent that exists under state law even with adults right just different criminal laws magnified it sounds in the Juvenile Justice System but you know the particular question is that as raised by the CLC which is that the guidelines appear to appropriately be scoring and differentiating because those with a two-point juvenile offense have a higher recidivism rate based on the data that we just published than those with a one point and they recidivate at a faster pace and so um it's it's not that these points or the way criminal history is being scored is useless irrelevant or that the guidelines aren't appropriately categorizing seriousness um of offense I mean this data indicates to us and certainly that there there are extremes and there are except ceptions and and so forth but this data seems to indicate that two-pointers versus onep pointers are are different and that the guidelines are capturing that yeah and I think that part of the I was just talking about this with somewhere earlier today I think that the reason that there's a little bit of a disconnect in in in is that because in my district they because 17 starts out at as adult those for me those two-pointers are going to be those misdemeanor um understood right and so that's you know where at at sentencing we as judges are trying to individualize that sentence and understand get us behind that so that we can then you know move you down or vary or you know impose the appropriate sentence but yeah no I I I think and I think that option three I I was a little confused in in the some of the remarks because it's not option three doesn't have the judge ignore it or not consider it you it's just going to become part of 3553 analysis then and and I think that the change in the rule is actually going to encourage um the government and the defense to look closer at that information and provide the court with more accurate information about what that what that conduct was that juvenile conduct was and so it will make it so that you can you will have more information rather than less because I think that the way that the the guidelines capture that information gives kind of an out into to looking closer at what actually happened and the rule is like forcing the parties to look closer so that we there's not assumptions that everybody is starting off on on equal footing I I really do think that this will result in you as the judge receiving more information rather than less information and that you can then tailor that 35 53a analysis to that person in front of you because the prosecutors are not going to want you to not know about that juvenile conduct and the defense attorney is not going to not want you to know the specific circumstances of that to to give you um in information about how to weigh it you will as a judge get that information perhaps you are likely to get more information with the change in the rule and option three that we're proposing so that you can more adequately weigh it to that specific person in front of you um and I think that that's what I was going to answer is that I think that the goal that we're that option three tries to further is getting you more information than less um it is encouraging everybody to look closer and understand that jurisdiction and those practices and that culture in a way that you can then make your sentence more individual um and perhaps hopefully more effective because you know some of the stuff that we heard earlier today is that for too harsh that's why we want to classify the risk more adequately and more more more correctly is so that you if so that you can tailor what you're doing um to the actual individual's risk and and help them be be better particularly at a time where they they have the opportunity and the ability to get better because they're very young thank you Miss Le we appreciate you I know you started off slow and thought it was done thank you so much for your testimony thank you so much [Music] thank you for your patience our fifth panel provides us with perspectives from The commission's Advisory groups on this issue first we'll have the honorable Raph Ericson as a mentioned yesterday he's a judge on the United States uh court of appeals 8th Circuit Court of Appeals after having served as a a district judge and uh many uh uh rounds as a state court judge uh in North Dakota right North Dakota right yeah thank you thank you uh he's our chair of our tribal ISS uh chair of the commission's tribal issues Advisory Group second we'll have Deb Rhoden uh who is a managing partner at the law firm of Woodhouse Rhoden Ames and Brennan LLC in Cheyenne Wyoming she is an atlarge representative on the commission's practitioners Advisory Group her practice focuses on business representation civil litigation juvenile representation and criminal defense and she practices in the state and federal courts at the trial and appell levels on a weekly basis bis Jill buha she's here uh she serves as our deputy chief us probation officer from the Northern District of Iowa and she's the chair of our uh probation offices Advisory Group I'll remind you that she has a career with the hour Department of Corrections in 1998 and joined the United States Probation Office in 2003 where she was previously where she has previously held positions as a czen guidelines specialist as well as a supervisor and assistant deputy chief uh overseeing the uh pre-sentence investigations unit finally we have Miss Mary gr ly who is a professor at Catholic University of America in Washington DC she currently uh is visiting at the University of Georgia school of law she serves as our chair or as the chair of the commission's victims Advisory Group Professor lry is a former a USA for the District of Colombia a former policy consultant and deputy director in office of legal counsel at the national Center for missing and exploited children and the former director of the national center for the prosecution child abuse judge Ericson I turn to you sir thank you very much um I think that uh as we uh um look at uh the situation of youthful offenders at the tag uh really boil down to what's our lived experience right and it's interesting because we divided uh almost unanimously that we would favor option three but we have one to Center and that's because the lived experiences are different right uh the one to Center is a person who is responsible for prosecuting major felonies arising off of uh Indian reservations and his lived experience is the most violent crime the most inexplicable crime that is being committed in the district is being committed by these youthful offenders right now all the rest of the people are living in a different world in which they say well we have an experience or we deal with juveniles who have a different uh outcome and a different experience right and how we balance that is problematic and I don't envy you your ultimate decision but we still come down as a majority firmly in favor of option three and in favor of uh uh and we unanimously support uh Part B of the proposed amendment if you would indulge me for just a minute I know you do all the time but I'm still going to ask you know here's the story for me personally I started adjudicating juvenile delinquents when we called them that uh when I was 33 years old and I was a County Court Magistrate St and I continued to adjudicate delinquents or juveniles until I took the circuit bench because 61% of the juveniles serving in the federal penitentiary in the US Bureau of Prisons are Indians from Indian Country all right and so here's my lived experience I heard somebody say this morning in a State of Shock that they are still considering the best interest a child some judges someplace in juvenile courts are still doing that and I can tell you why we're still doing that cuz I did it till the day I left the bench as a trial judge it's because there are inadequate resources to take care of the juvenal that we are confronted with all around the country and is exacerbated in Indian Country take for example one of the tribes that that that one of the Indian nations that that I dealt with in eastern North Dakota small population in a single County 9,000 people it has a status of sovereign state of a Sovereign Nation it's trying to do everything that a state would do with a budget that 9,000 people can raise okay now if you think about what kind of a juvenile justice system you can create under those circumstances and what resources are available to you and you would say that that might Mighty thin that would be a true statement and so those kids if they are encourageable and we can't figure out where they're going they eventually end up sitting in a federal United States district court and a United States district judge or a Magistrate Judge is going to make a decision as to what are we going to do with these kids some of these kids are kids that I mean I bear in my mind I have an example of a kid that was sitting in front of me that was sexually abused as an infant and a toddler neglected um for a considerable period of time um develop PTSD probably is suffering from bipolar disorder and is sexually acting out at the age of 16 and what do we do with that kid well we're going to adjudicate that kid because the only way we can get that kid into a place where they can get treatment and that treat is going to be meaningful is if we adjudicate them right now when we take that Juvenile and we send that juvenile off we send them off 900 miles away to Denver because while there's a facility in Rapid City which might be appropriate for that child which is only 500 miles away it's filled with Native American kids from South Dakota all right the Bureau of Prisons doesn't know what to do with these people and so we develop contracts with local agencies to do what we can and so yet that's part of the people that we adjudicate I think of another kid who really was just kind of out of control and like to Steel cars he operated on when I was a state judge used to say there's a whole CAD of human being out there that operates under the C car steel car principle and that is you see the car and if you can start it you will drive it cuz yeah ask them why'd you steal the car keys are in it why'd you steal the car they left it running you know and you're going what I mean that doesn't make any sense but they're kids and they do this well we're all now frustrated there's nothing they can do the cognitive behavioral therapy that they've got available in the juvenile system under the tribal system has been exhausted and so they bring this person to me and we adjudicate that person so that we can get cognitive behavioral therapy paid for at a more intense level than we could get somewhere else all right now if that's your lived in if that's your lived experience you're going to say gosh scoring all these things is mighty unfair right and that's where the majority of the people on our committee are but we are cognizant of the fact that you know what the very worst violent crimes that I saw senseless crimes were being committed by 17 18 19 year olds um that uh you know um like beat kids to death with a with with golf clubs I mean you're sitting there saying you're kidding me what kind of a crime is that um my colleague had a crime where a guy was snoring and so uh 18-year-old kid dropped a bowling ball on a 17-year-old kid's head right what is that and how do we deal with that you know those are horrible crimes and so it's easy to say well we got a score score them and a system that says Don't score them is doesn't seem right but I can tell you that that that tyak does uh urge that we go to a system that doesn't score that conduct because it's all going to show up with a significant description in either other uh uh other crimes or other charges or in other arrests in the pre-sentence report and one thing I can tell you is that the prenten reports that we had in our district were extremely uh um detailed when it came to juvenile conduct um and even when they were scored as we're going to score it there's still a detailed explanation there as to what happened because in our district it matters that we know what the information is that led to this person being adjudicated as a delinquent because it could be all over the board and the C crimes uh convicted of could be identical okay so you know the real issue for us is do you start with the thumb on the scale or do you put the thumb on the scale when you look at the conduct later in 3553 and you know and that's the same thing I had to say yesterday it said where do we anchor it you know and you know if you think that our theme coming out of tag is that we should anchor it in the 3553 as opposed in the guidelines itself it's because the lived in experience of Native Americans in Indian country is that uh the guidelines operate in a manner that is unfair to Native American people in comparison to people committing the same street crimes in the state and that's the that's our circumstances so but I think that that that you know um this has been a very fascinating uh group of panels I think it's it's really really been informative I I want to thank the commission for Gathering such an impressive group of people to testify myself excluded of course but but I think that in the end you know this a hard choice but we firmly believe that the best option is option three because it allows the judge to still consider everything but it doesn't start by waiting cases based on just the nature of the adjudication and the length of time served um which we don't think is representative of the severity of the crime uh that's committed by juveniles in the way that that it's being adjudicated thank you thank you uh judge Ericson Miss Road thank you I want to thank the commission for allowing me to testify here today and I'm particularly excited to speak on youthful individuals because in addition to doing Federal criminal defense work for about the last 20 years I've also appeared in my local state juvenile court system um sometimes as direct counsel and often as the guardian at item in that realm so this is a issue I care deeply about on behalf of the peg we prefer option three and I there are three reasons for that but before I get into that a lot of the discussion today I think it's critical for the commission to remember that um The Proposal option three does not disallow judges from considering juvenile records um as my colleague pointed out they're there they're in the pr sentence report the question is what's the starting point what's the jumping off point as I mentioned earlier there are three bases for that and so case law and scientific evidence I will not even begin to pretend like I can present scientific evidence like you already heard this morning from um the panelists but case law also suggests that this is the trend um that we are moving to and sort of taking into account juvenile offenses in different ways um there's been lots of United States Supreme Court case law on this I would also note that there's some um emerging case law from different states where they are treating what's called emerging adults so your 18 19 20 year olds differently as well and that's um on the Forefront and that's primarily based on the scientific evidence and the psychological evidence I would also note that the Department of Justice in their office of Juvenile Justice and delinquency also references that sort of the current system doesn't work well we need different systems for juveniles um and I would agree with that there are such disparity as you've heard um earlier today in how each state or even each district addresses Juvenile delinquencies and it results in unwarranted disparities which is one thing that we are supposed to avoid in federal sentencing things like placement options where I um am at which is Wyoming we have very limited resources um in terms of where you can place children delinquencies and the default if you have a couple facilities that are busy or booked or they don't the children don't meet the criteria then they go to What's called our boy school which is our lockdown facility which then results in criminal history points for them so I would also add that the disparity is not only in in race and in geography but even in resources that are available per state for and what I want to mention too is um there can be great disparity in in the um the points the underlying basis for the points so um a a kid could take his grandma's car who he's living with right and take it out for a half hour drive and then get charged with a delinquency he could in my state end up at the boy school for a significant amount of time depending on even how his family back home is is going if they don't have stable housing if they aren't doing well then he's by default stays at the boy School uh so that individual could wind up with criminal history points ferally later same as if you have a violent carjacking those individuals may have the same two criminal history points it just varies so greatly and there that disparity is just not taken into account because we start with the points we start with the presumption that they should apply instead of starting with the presumption that they don't apply but we have all the information so that if this is a violent carjacking the sentencing judge will address that will sentence accordingly versus if this is he took his grandma's car out for a joy ride then the sentencing judge can take that into consideration but it's the start stting Point are we starting from the place of automatically assuming that all these juvenile convictions should receive two points or are we starting from the point of in in conjunction with science and Neuroscience that these shouldn't be counted that we should start with no points and then if there is a violent history we can account for that the other issue uh that the peg has seen and is concerned about is due process in juvenile courts it's entirely different than Federal excuse me than adult courts there are different goals in juvenile court cases the focus is often on the entire family not just the juvenile who's before the court so there are different Services there are different bases for revocation so uh the kid who borrowed his grandma's car could could have a delinquency be out on probation and refuse to go to school I have a judge in my district who says I can assure you you're going to go to school cuz he will put you in the boy school and ensure that you're in school additionally in juvenile court the advisements are very different um and the due process considerations are very different in juvenile court we often tell juveniles this won't follow you this is just your juvenile record no one's going to see this you know and I sit there in court knowing that's not true because if this individual winds up in federal court later the juvenile adjudications will absolutely beyond the prenten report but I think that advisement is common in juvenile court that we think it's somehow magically sealed or done away with and it simply isn't it's also difficult as a practitioner to advise our clients of potential sentencing ranges based on juvenile adjudications clients often don't even realize that a juvenile adjudication could bump up their criminal history score and so we might advise inappropriately without recognizing those points are coming because they don't even mention oh yeah I was in the boy school when I was younger um so that makes it a challenge as well I understand the concerns um raised by multiple panels about you know what do we do with those violent juveniles but 3553 specifically says you take into account the history and the characteristics of the defendant so those can be accounted for properly it's just that we shouldn't start with the premise that they should all start with criminal history points with respect to Part B of the Amendments um the peg actually had in its position on of simplifying the Peg's position is that we should not have those in there however if this court is going to do that we certainly uh would request that there is a a reference that youth does matter there is a reference currently um in there but it's sort of like you can account for you youth but if it's just present to an unusual degree which I'm not sure what that even means um but youth is not really taken into account and I think that's important thank you Miss bu thank you commissioner Reeves again on behalf of the probation officers Advisory Group for the opportunity to provide comment for our testimony today poag intends to focus on the areas that we are most familiar with and are most relevant to our role in the system and that is our experience with records collection and interpreting the definition of confinement an essential feature of every pre-sentence investigation report is Part B where the details of each and every known arrest and conviction are summarized and scored ideally such an important section of the Pres sentence report would have a consistent Baseline of reliability especially because the criminal history scoring is 50% of what determines the sentencing range in every criminal case unfortunately because of our role in collecting criminal history records we are keenly aware that such is not the case when it comes to juvenile adjudications during 2017 Poe submitted comment regarding proposed priorities and discussed our concern with the wide range of varying access to juvenile records uh from state to state jurisdiction to jurisdiction and even from judicial officer to judicial officer as a result the Pres sentence report ends up being a representation of what we were able to collect versus a representation of what the defendant actually has for prior convictions juvenile convictions um seven years have since passed in the current new group of officers who make up Poe are also of the consensus that records availability remains an issue while Poe was able to come to a consensus that this is an issue we believe should be addressed we were unable to come to a consensus as to how the issue should be addressed Poe's vote on this issue revealed that we are evenly divided between options one and two the lack of consensus within poag demonstrates the tension between the many factors that should be considered in identifying a solution which is something we've seen in public commentary as well option one largely continues with the current scoring practices under chapter 4 but limits the scoring of offenses that involved confinement to instances where defendants are charged in adult Court unlike adult sentences of of confinement juveniles are placed in a variety of different types of residential facilities that make it difficult to discern if they meet the definition of confinement option one offers a simple solution to resolve a complex issue yet leaves the remaining processes of scoring juvenile adjudications intact it also seeks to hold defendants accountable for past criminal behavior and seeks to dis distinguish defendants who have prior juvenile convictions from those who did not sustain any juvenile convictions the other half of the voting members of Poe preferred option two as it not only resolves the issue of confinement but it ALS also largely resolves the issue of juvenile records availability and minimizes the impact from the vared charging practices among jurisdictions also option two provides for a level of accountability that would still capture the serious offenses that are ultimately prosecuted as adult convictions with regard to option three where offenses committed prior to age 18 do not receive criminal history points poag reached a consensus that offenses committed under the age of 18 should still be considered in criminal history scoring if the defendant was charged and convicted as an adult option three does not appear to capture the seriousness of the defendants prior conduct because youthful individuals facing charges in an adult Court are often reserved for more serious offenses a specific crime that came up in our discussions and came up in public comment as well is the violent of offensive carjacking while that was also a crime that provided heightened concerned the example Co cases Poe discussed also resulted in the juvenile defendants being convicted in adult court for those serious offenses because option three would not score those types of offenses Poe does not support option three in conclusion uh Poe recognizes the commission is considering a wide range of issues addressed within the public commentary including an analysis of her citizenism rates the consideration of updated brain development research the varied charging practices involving juvenile offenders concerns with procedural safeguards within the juvenile system varied records availability the purpose and definition of confinement and the present scoring practices impact on minority youth poag recognizes the validity of each and every one of these factors but is of the position that a collective assessment of all of these factors weighs in favor of change thank you miss bua miss Larry I wish I were as smart as Miss bushaw then I'd be in good shape uh good afternoon ladies and gentlemen of the commission thank you so much for your time I want to focus on a word that's been said twice um so far today and that would be victims and two groups of victims the victims in the instant case for which the federal judge will be sentencing maybe even three groups a little bit about the victims of the prior cases of the youthful offender and then the future victims which statistically will be created to a greater degree in our view if you adopt these proposals but before I drill into that let's talk about what's not in dispute um we at the vag at least don't favor only things that increase sentences we accept so much of what we heard this morning right we accept that compared to middle-aged people or or older people that people in this age range definitely are are less culpable as a group that they um definitely have less impulse control and as a result of that their criminal Behavior seems uh more significant Etc and puts the public in more danger we accept that we also accept so much of the information from the first panel which I thought was really excellent which really seemed if we were going to boil it down to just a JD summarizing not a PhD more information is better right more information is better because this is really about the individual and in fact those experts said that they said we are not at a point where we can infer from group information individual information and they also said that um what we're looking at when we look at um culpability here is not just whether they have as well one witness said this and we agree with this it's not just whether or not someone has the maximum amount of judgment I certainly don't have yet in my middle-aged years but whether or not they have enough judgment for it to be relevant to the Court's consideration what is in dispute here is how we deal with all this information on the individual level it requires an individual assessment and while one uh witness earlier today said our concern is tying the hands of the judge that is our concern and we believe that these proposals do exactly that um notwithstanding more information is better focus on the individual that is what is right and just for the offenders as well as for the victim survivors part A and Part B reject this concept of an individualized approach to quote another witness these in fact use a sledgehammer when perhaps attack would be appropriate in part a um we ask judges with regard to part A we ask judges to get a full picture of the defendant because that is what you need to figure out deter to figure out evaluating how much treatment have they gotten before will treatment work in this instance Etc and yet the proposal is to remove data about prior juvenile judication or convictions to remove that data from the scoring that's important data that will help a judge figure out these answers okay um and and I just have to say there's been a lot of talk about comparison our experts were very clear among the group there's a lot of diversity and heterogeneity and we have to think who we're comparing to a lot of discussions been why is this in the score here's why it's in the score it's in the score because compared to the millions of youthful people in this country who never commit a crime these offenders stand in a different place so they shouldn't start in the same position that the vast majority of people who also do not have fully developed minds are have not committed crimes they stand in a different position and this commission adheres to that because a year ago we were here discussing zero point offenders and this commission said we see a distinction between people who've actually never committed crime and people who have who've got some points but that's a distinction and the basis for that distinction was recidivism if it mattered a year ago it matters now and that's why where we start these offenders are in a very different position turning to Part B um our view is based on membership in a group we shouldn't make any determinative statements about uh departing upward or downward that's not nuanced and yet that's what part B wants to do as as commissioner boom said the guidelines currently draw distinctions amongst offenders the length the seriousness of the offense um how long ago it was what were the outcomes and we think that that is the appropriate thing to do and what was mentioned earlier was uh that that if we just move it all into 3553 that it will judges will work will will work harder litigant will work harder I cannot believe that any defense attorney would say Well it's already baked into the score so I'm not going to explore these points of course we're going to explore these points and we know from the data for those who are getting two points judges vary significantly from your own data on those groups I just want to close with an example to bring home what I'm talking about about three weeks ago in Kansas City Missouri there was a terrible incident we all know about where um there was a shooting at what should have been a very celebratory event and two juveniles and two young adults have been arrested for 22 people being shot hundreds of people in the community being victimized at least half of these 22 people were under 16 a six-year-old and an 8-year-old and Lisa Lopez Galvin was killed assuming that the two youthful offenders that have been arrested were involved and of course we don't know if they stay in juvenile court or or if they stay in juvenal court or not under option three they will have no points of at all if they find themselves in federal court 5 years later no points at all they will start in the same position as someone who's never been involved in criminal activity and this treatment of these offenders as though they have no criminal history is contrary to what this commission has done and then Part B of The Proposal will be triggered as well because the young adults there's an 18-year-old and a 20-year-old who have admitted to shooting into this crowd knowing that they were children there the part B would say essentially that well they weren't 25 yet so let's treat it differently um because of that group as opposed to an individual assessment as to what was going on there and in our view that's simply the wrong outcome it doesn't speak to all of the sentencing um criteria and it certainly sends a message to the victims in Kansas City Missouri what a federal court thinks about their victimization which they will carry for the rest of their life what the victims in the case and the instant case what the court thinks about them when they're going to artificially sentence the defendant as though they had no criminal conviction and what the vict and what the court thinks about the victims of the future cases which statistically speaking if my math is correct will be about 2,250 potential future victims of 75% of the over 3,000 offenders implicated by this recommit a crime and the vag thinks that that is not the way to go thank you thank you all so much any questions uh miss a thank you all for being here and um I wanted to pick up with something that Miss Lear said uh touched on which is you all are our Advisory Group so with the exception of Miss rhen I think you've all appeared before us last cycle as well and it strikes me you know we have chapter 4 the goal of chapter 4 is to accurately predict recidivism and over the years commissions before us have always you know reexamined seen if there are tweaks or calibrations needed to make sure that that is as accurate as it should be and as functioning as it should be what strikes me as a little bit different here and you mentioned zero point but also the status Point um uh issue that we addressed last last cycle you know there there were commission studies on recidivism that at least highlighted issues that caused us to look at it again and see if tweaks or calibrations were needed so you know with zero point offender there was commissioned study showing that the St status points themselves the commission concluded in a report that they added little to the overall predictive value associated with the criminal history score and so the view was um although we did not all agree but the view was that taking out those status points or minimizing them would not undermine the ultimate goals of predicting the predictive value of chapter 4 and then with with uh zero point there was data by the commission on recidivism that showed Market differen between the zero pointers and the one pointers even though they were all within criminal history category one what seems a little odd here is that we have advisory groups telling us you know you you favor changes this way or that way but we have commissioned data again on recidivism that's showing that the current system is not only strongly showing that there's a difference in rates of recidivism between those that have at least one juvenile um Point counting from the population again we said there's a 23% difference in the commission's data but that there's a difference even between the TW pointers and the onep pointers as we currently distinguish and so I guess we do have that same kind of data that's showing that chapter 4 is doing what it should do and so I'm wondering for those of you that are here today taking the position that we should change that we should tweak that we should be calibrating that and going to option three or option one or option two why you have confidence that that is not going to undermine the overall predictive value of our chapter 4 calculations the way I see it is that if you look at um the vast majority of uh uh adjudications throughout the country are operating in a system that is so pieced together that we're really not comparing Apples to Apples and so the recidivism projections are capturing a larger you know the the the scoring is capturing a larger percentage of people than actually will recidivate the other thing is and I've I've uh had some issue with recidivism statistics that focus on arrest because you know arrests don't mean much uh in in the in the real world right I mean let me let me just give you an example when I uh was uh for five years uh presiding over a juvenile drug court and I looked at the recidivism statistics that came in there you know we got a lot of kids that were being arrested for just ordinary kid stuff driving under suspension you know um their curfew violations if they were under the age of 16 and subject to the curfew and so they were arrested and so we looked at our statistics we'd say yeah that's not good but did we see uh increased drug use did we see increased violent crime we did not for most of the people that we were working with right and so when I you know now I I get that I'm in the middle of nowhere in North Dakota and I'm looking at a drug court that's got you know 50 kids in it you know and then maybe that's not really a statistically valid uh pool but but I look at it and I just think that that that that you know um that they may be rearrested at higher rates every kid who commits any crime has already shown some predisposition to be um beyond the 95% of the people people that don't commit crimes right and so that's out there but I don't know that that that hanging these two-point offenses on people that that will dramatically increase the sentence is appropriate when you look at what some of the underlying conduct is and I just will come back to the fact is that you know when I was sitting in court a lot of the juvenile adjudications that the kids that we saw in uh Indian count were different than when we saw on the south side of Fargo where people with money lived right because nobody was being adjudicated as a as a juvenile delinquent in order to access um treatment and that's happening uh in places that are uh underresourced right and and so that and I think that's the driving uh point for uh uh for tyag you know and and and like I said this is not an easy decision right right um it's it's it it's one of those things if you just look at numbers and I and I get that that's part of what the commission does but Indian country is just different and the numbers are are not being captured in the same way I it's probably an unhelpful answer is he mate thank you all for being here today and actually before I move on to questions since we had a whole large number of basketball shoutouts yesterday I think we need to acknowledge Caitlyn Clark in Iowa so thank you for representing yes indeed um but turning back to the uh recidivism data for for a minute and kind of the things that that matter when when we're looking at that I um I just I as we were talking about I was wondering about several other things like does recidivism in what form matter for example if it's recidivism in the form of a supervis release violation versus um a conviction for a new violent offense you know are those different things um it doesn't matter whether the thing we're looking at we know is predictive or whether it's just another thing that's correlated are those things that are also relevant in US thinking about recidivism data I I think so and and I think that you know when it comes to sentencing isn't that the question we all ask is sentencing judges we're sitting there and looking at what happened why are they here what did they do right I mean the reality of it is if you've got a person who's been engaged in all sorts of violent conduct and now what you're seeing them for is that you know they're skipping school you know um and they're you know not showing up at their probation officers uh uh appointment that's a different thing now they will both be arrested right because there's a revocation going on we're going to we're going to have a conversation you know one person we're going to incarcerate again and the other person we're going to you know just have a long talk to and and if you're me you just know that this is going to result in some community service you just go out there and say you're going to work for a few hours so if you'd rather work than go see your probation officer I'm good with that you want to work rather than going to school I can live with that but guess what they all go back to school and start seeing their probation officers I mean that's you know part of what we do miss Larry I respond to that um couple thoughts on reiv ISM and I would agree with you more information I agree entirely more information matters and I would draw distinctions between those absolutely because it's the whole defendant um but you know it's interesting for me to hear challenges to arrest rates um as not good measures of recidivism because we're normally meaning the victim uh advocacy group are saying that because we point out those are just when they're arrested with less than 50% of crimes being reported across the country and when we get to sexual offense we down to less than 20% of crimes there's a whole host of crimes that are never measured at all now of course we're not asking the commission there's no way for you to keep that so I'm not saying that but I think that yes arrest rates are not perfect um but it goes both ways um and I would say just something and and I would agree totally that a a violation probation is less serious in some cases but let's keep in mind sometimes because the person's on probation and let's say it is something sexual or something of that nature the violation of probation will be the way to deal with it but also a violation of probation and again I'm not equating this to more significant violent um offenders but a violation and probation is a situation where somebody who has engaged in illegal activity has now been put in a situation where they're being monitor so you got to walk the straight and nrow you got to do X you got to do y and this will be a good measure to see whether you can follow the laws Etc and then in some instances they don't those aren't all the same for all the reasons that my able colleagues and everyone has said but they're not insignificant all the time and I think we just have to be careful with these blunt instruments and I realize the commissioner you were not using a blunt instrument but there's nuances here to all of these scenarios and that's why individual sentencing within a framework matters and if I could just say one other thing about the um disparities and I mentioned the Rin gold case in our paperwork I think it's important to note that without some cabining here especially with regard to Part B we're going to have judges doing exactly what we're all expressing frustration about with no guidance I think someone's youthful somebody else thinks someone's not I think this juvenile conviction matters somebody else thinks it doesn't having it anchored in um scoring helps prevent that disparity of sentencing um in in my view Miss B yeah if I could just comment briefly I get the point of the question um and it's a good one because um last year we embraced the statistics that the commission was putting out on why we need a change and so I guess the the question to the comment is you know we have statistics that the the guidelines functioning as design when it comes to chapter four predicting recidivism so why change it and I would say the the big difference is last year recidivism was the main factor but this year it's one of many factors that we're dealing with with this amendment so when we were trying to figure out what option we wanted to vote for we were looking at the confinement issue the records issue um the disparate act or impact on minority Youth safeguards and juvenile court um recidivism was a factor brain development was a factor and then distinguishing juveniles who have no priors with juveniles who do have priors so that's the only thing I would comment is that we just believe there's a lot more factors to consider this year but it is one of many and I just going back to the data though I I agree completely that you know the the underlying juvenile conviction the seriousness of it um is important for judges and policy makers to understand uh and ultimately take that information and impose a sentence that is sufficient but not greater than necessary and is individualize but again you know according to the data that we that the that the commission recently published more than half of the juvenile offenses that received the TW point two points were violent offenses robbery assault and other violent offenses compared to approximately onethird of the onepoint offenses um so you know those certainly there are circumstances where someone scores for taking Grandma's car for a joy ride that you know Grandma really didn't mind maybe she was inconvenienced but um and so our data is on that granular level to tell us what those juvenile offenses are and so you know I one point that I I thought was really interesting that you made Miss ly is you know the the notion that we should treat everyone the same um and by removing all the points we are treating everyone the same but these folks are not the same I believe the percentage is0 4% of juveniles are committing juvenile offenses and so to remove that scoring completely seems um as though we're treating folks who are differently situated very similarly um to or the same as as the vast vast vast majority I thought that was a really interesting point um so and I think to commissioner Wong's point you know that the data meant means something when we're considering recidivism and lower recidivism on status points and zero point offenders but it seems like the data must also mean something um as well for um juveniles any additional questions this panel thank you ladies and gentlemen particularly those who've been with us uh yesterday and today we appreciate you so much uh this concludes our morning session and I realize this afternoon and we're behind on our launch break uh but we'll try to catch up we'll come back here uh 150 1 15 uh our sixth group of panelists will provide us with victims perspectives on this issue first we will hear from Sher althorp uh all right a retired San Diego California Police Department while the while with the San Diego Police Department uh she spent 27 years as a patrol officer and 20 of those years were with the canine unit Miss ellithorp is also a wife mother and grandmother second we will hear from Lynette Duncan who is employed by the veteran administration as both as as both a prosus pro prosis okay proste I am aost prst and and an orthotist okay okay uh at a hospital in North California Northern California she's been working in Prosthetics that's right all right and or and Orthotics for over 20 this we love each other oh for over 20 years third we will hear from Ashley covalo cavalo I'm sorry uh thank you uh who currently works in the fashion industry she previously spent eight years in the Army National Guard uh to pay for school where she earned an associate degree in criminal justice and a bachelor's degree in psychology ology Miss cavalo has spent the last two years volunteering as a contact person for parents of murdered children a nonprofit organization uh that provides emotional support to families and friends of those who have been murdered finally we do have a fourth one all right who will be appearing uh uh uh by video with us uh uh Miss uh Rosemary Brewer who is testifying remotely Miss Brewer Brewer is the executive director of the Oregon uh Crime Victims Law Center a nonprofit organization that provides free legal representation to Oregon Crime Victims to assist with the assertion of and protection of their rights the center represents victims in all stages of both the adult and juvenile criminal justice systems including in postconviction matters on issues such as the right to protection the right to notice and to be present the right to be heard and the right to restitution Miss elor we're ready when you are ma'am me I obviously wasn't listening thank you for having me here it's going to take a second October 5th of this year will be 29 years since my father was murdered in Cold Blood over a bicycle even with almost three decades it was like it was yesterday or today was just talking about this five minutes ago and it wasn't this bad late at night October 4th 1995 two taged boys Greg Gregory Valencia 17 and Ron Vera 16 entered into the complex where my parents lived they were there to commit burglaries Valencia the 17-year-old knew that the complex was a good place to steal bikes they wanted they wanted bicycles to ride home Valencia came to the complex with a loaded 22 in his waistband they had already taken a bicycle from one of the comp one of the condos and he was in the common area Valencia attempted to steal the bicycle from my parents lock patio my dad heard the noise and he went to went to see what the problem was he saw Valencia just outside their wall patio and he went to talk to him Valencia was already in the Vera was already in the common area with his stolen bicycle and Vera was walking out towards him when Dad came out to talk to them there he's trying to walk them out of the out of the complex my mom was standing on the patio watching what was going on and as they're walking out of the complex Valencia picked up the bicycle he had stolen and threw it at my dad dad kind of bent over to avoid getting hit and he hit him in the upper shoulders in the and the back and as he ducked over Valencia pulled the gun out of his waistband and shot him in the back of the head my mom watched my mom saw it happen from the patio so she went out to went out to help him the two the two juvenal ran out of the complex and my dad died at about 2:25 a.m. on the 5th both juvenil were as adults and sentenced to prison both juvenile said prior history in the juvenile courts excuse Valencia is currently in prison Vera was released on probation May 6 2022 the purpose being here today is considering sentence as a survivor of a cruel and horrific crime sentencing as a step towards healing for some it allows closure a sense of justice served as a career law enforcement officer I've always believed in the system I had faith in the system this my heart F fed with being allow a sentencing judge to see all the records and the history this allows the judge to see the whole picture in my case the escalation of crimes my own brother's got juvenile history issues and these issues continue through adulthood he spent over half of his adult his adult life in jail or in prison and he's currently on parole that's just that's a whole whole another you cannot minimize my pain trauma and loss by eliminating or downplaying the juvenile criminal history families and victims are further traumatized by minimizing their pains we survivors cannot be forgotten in favor of our perpetrators each case is unique each victim and family is unique a sentencing judge would find their hands tied without access to full criminal history not just a pre-sentencing report I've read my brother's PR sentencing report and that was off it was quite the uh interesting reading sentencing has to be balanced having de dealt with my father's murder for almost 30 years has not erase the loss or the pain if his murder was to commit another Crime After release and able to have my my dad's murder erase from his history that would be devastating his murderers made their choices they should have to live with their choices my family and I have been given life sentence we can't escape or hide from we like many other families have have not been given a choice please consider the victims don't make us less because of perpetrators for juveniles there should be punish fitting punishment for crimes I can't tell you how many times I've heard juvenile offender or child regarding my my father's murder my father was 44 years old when he was when he was shot in the back of the head by a 17-year-old the 17-year-old was not simply throwing at temperature tantrum he was committing murder he came armed to commit burglary and he chose to commit murder along with it the violence of the crime does not seem become any less due to age of the perpetrator this one Drew The Loaded Weapon pointed and fired don't minimize this murder due to age thank you for hearing my dad's story I know he's watching and I hope I can make you standing for him and hopefully giving my family and maybe others a voice thank you thank you m Lord for sharing your father's story your story thank you Miss Donan I have written a longer more complete statement for the record and you guys have that along with a photo of my dad's murdered body just thought it's important to see my dad the way I saw him last today I'm reading in the bridge version I was just 17 the night two juvenile asants violently murdered my family they were 17 and 18 at the time one of them was even an escape from the juvenile correction system they both had long criminal records they' spent many months robbing and burglarizing numerous homes and businesses but N9 days before my family's attack they began murdering their victims my family's attack was the F third family victimized in their nine-day murderous crime spree my dad owned a family billiard Center the two asants followed him home after he closed for the night my dad arrived home around 4:00 a.m. he was unlocking the front door when the as salant ambushed him and shot him in the back of the head my dad died instantly my mom and 18-year-old sister got up to check out the Noise by then the as salant were on our front porch searching my dad's body when my mom opened the front door they began shooting my mom was shot three times she fell back and then my sister was shot the asants ran back to their car but before leaving they used a shotgun and sprayed pellets at the house and family my mom had 187 pellets up and down her legs my mom survived my dad and sister did not my 11-year-old sister Donna and I awoke to gunshot to get out of the house we both had to jump over my dad's body and all of his blood as the body was blocking the front steps of the house I still remember standing in the middle of the street screaming it was a low guttural sound that I never want to hear come out of my body ever again I could hear sirens coming in all directions toward me they were just getting louder and louder it seemed like forever it would be years before I could hear another siren and not have a panic attack thinking this was happening to another family eventually we were at the neighbor's house which had become the temporary police command post I walked into their kitchen one of the officers set me aside he told me your dad and sister didn't make it but your mom's going to be fine then he said now go in the back bedroom and tell your little sister she was 11 I was 17 it was before there were office of victim Services it was a whole different time I remember wanting to tell him I can't I can't tell her but I knew I had to because I didn't want her to hear it from him thank [Music] you she was in the beds her friend's bedroom closet in a fetal position hiding as far away from the boogeyman as she could get I had to scoop her up and tell her they were gone we both just held each other screamed telling Donna they had died has been the hardest thing I have ever done in my life and I have done some really hard things but I know when I'm on my deathbed and I think back on my life that will still be the hardest thing I've ever done many years later Donna would begin her Victim Impact statement saying that was the night I learned that monsters were real and daddies don't always kill them later that morning I was responsible for notifying relatives and friends including my dad's mother my paternal grandmother and my older sister's fiance the friends living locally learned about it from the local news media that Monday was spent planning a funeral including purchasing cemetery plots caskets and headstones I was just 17 in 1977 there weren't companies to cllean crime scenes men from our church took care of that and patched the walls and the many gunshot holes I am so grateful for their service life became incredibly hard after that my mom checked out emotionally and spent most of her time I whether working at the pool hall or being alone in your bedroom sobbing we all fell apart both individually and as a family I've worked many different jobs most of them terrified me as I was so afraid of being robbed when you don't feel safe in your own home you don't feel safe anywhere ptd was not a diagnosis and therapy was not done it wasn't until in my 30s when I was taking a psychology class as a prerequisite for the Prosthetics program that I read about PTSD and I remember screaming out loud I've got that and I started getting therapy my life has began improving after that I know I shouldn't be functional but I am there are evil people in this world when sentencing someone you can't just ignore those who are evil violent crimes must be taken into consideration I know your decision will not affect my life at all but if truly evil asants get released what about the next family they slaughter and the family after that and the family after that thank you thank you Miss Duncan Miss cavalo as you deliberate on the proposed amendment aimed at excluding any convictions prior to reaching the age of 18 from a defendant's criminal record I urge you to recall the story you're about to hear and remember that your decisions have a profound impact on our communities I ask for your patience as my brother's story must delve into the backgrounds of several juvenile offenders my brother Anthony was 20 years old when his life was tragically cut short in an act of Senseless violence he fell victim to a group of four individuals aged 16 to 19 whose criminal records painted a clear picture of their dangerous trajectory I cannot understate the gravity of the events that unfolded four juveniles meticulously planned an armed robbery they made a few stops to arm themselves with loaded guns and to steal bandanas to conceal their identities strategically opting for a color opposite that of their gang affiliation they picked a random residential location and set out to find someone to rob their actions were calculated deliberate and devoid of empathy it was at an intersection that my brother inadvertently encountered them and attempted to navigate past them they blocked his path and escalated the confrontation by raising their guns my brother began to run towards safety in a cruel and merciless Onslaught they chased my brother firing at his back as he sought Refuge finding shelter behind parked Vehicles 15 shell casings were found at the scene he collapsed a block away from the hospital where two beautiful citizens came to his Aid his last words were please call my mom as we grappled with the devastating loss of Anthony we found ourselves ens snared in a legal system that seemed to offer more loopholes than Justice my father would describe it as a system that poured salt onto the wounds of victims while finding new opportunity for Avengers to evade responsibility and here is the salt to start if the current system was working my brother might still be alive today taxpayers have spent thousands if not millions of dollars on studies to show us recidivism rates are higher with shorter sentences I'm now learning that this might be recent the lead gunman 19 at the time had been released on probation a mere 2 and a half months prior to killing my brother on a shockingly short 18-month sentence for armed assault with the intent to murder the leniency of sentencing only served to embolden him further awarding him with enough Street Credit before being released back into society when we look at the data and the science available to us 18 months is not nearly enough he would recidivate he would escalate and the only unknown was who his next victim would be the second gunman was 16 years old despite his criminal record which included charges of armed assault with the intent to murder murder he was released on probation likely because of his age under the assumption that kids don't think rationally despite the Court's awareness of his violent tendencies and impulsivity they opted to monitor him with an ankle bracelet and simply hoped for the best was it his bullet that ripped through my brother's shoulder or was it his leg or his ear or the Fatal one that ripped through his lung here's some more salt change in bail reform legislation set off a tragic series of events that led to further loss of innocent lives just a month after bragon versus Commonwealth in Massachusetts bail for one of the defendants plummeted from $35,000 to a mere $1,000 the judge's interpretation of this new legislative development which is focused on the ability to afford bail swung the pendulum so far in the opposite direction that this dangerous repeat offender was set free somehow the gravity of being indicted for two separate violent crimes occurring within a year's time a massed home invasion resulting in the stabbing of two women and an armed assault with intent to Rob which ended in my brother's murder was not considered within a mere 10 months of his release he was arrested for an oui the system failed again when the probation office failed to communicate with the da leading to another release shortly after that he found himself in a high-speed car chase evading arrest and ultimately causing a fatal Collision that claimed three lives his own his passive passenger and that of a 32-year-old war veteran in route to meet his newborn child the aftermath of his actions brought Devastation to three more families and added another layer of complexity to my brother's case the fourth offender despite initially agreeing to participate in the robbery demonstrated a significant deviation from the others he had no prior criminal record and he swiftly chose to disclose the involvement to the authorities he shared similar socioeconomic and racial backgrounds with his peers and I believe his role is a good example of the impulsivity science which suggest someone his age has however the biggest difference here is his lack of criminal record and his moral compass or what Professor Morris called the good stuff yet even amidst our grief we sought solace in the pursuit of Justice 6 and a half years later my family finally found a semblance of closure as the perpetrators were brought to trial and rightfully convicted however our journey towards healing was abrupted abruptly halted by yet another legal twist another poor of salt massachusetts's highest court deemed it unconstitutional to sentence a juvenile under the age of 21 to life without the possibility of parole we now face a resentencing the significance of the numerous judgments that initially led us into the courtroom followed by the subsequent instances that demanded every fiber of our being cannot be exaggerated it reopens wounds prolongs anguish and thrusts families into a Perpetual state of suffering my parents who have already borne the weight of unimaginable loss now face the daunting Prospect for of continuing the fight for Justice from Beyond the Grave they cry for us for their daughters as they realize the journey did not end when trial did with each opportunity provided these juveniles demonstrated their unworthiness of such opportunities from the outset to me their persistent Behavior appears less driven by impulsivity and more indicative of a fundamental lack of moral Direction while I uphold the value of scientific understanding if a juvenile exhibits both violence and impulsivity I contend that lenient sentencing falls short in addressing the matter adequately Commissioners I appla you to consider the real life consequences of your decisions my opinion on lenient sentencing aside juvenile records serve as red flags guiding judges toward informed sentencing that prioritize Public Safety removing a juvenile's criminal record from consideration sends a dangerous message that past actions have no bearing on future Behavior it undermines the very essence of justice and accountability we cannot afford to ignore the warning signs or to turn a blind eye to the dangerous paths some young individuals may choose my brother's story transcends mere statistics it stands as a powerful Testament to the pressing need for reform may his legacy ignite change motivating us to Champion a legal system that prioritizes prevention accountability and compassion a Monumental dis decision looms ahead and its weight lies squarely on your shoulders I have made it clear where I and countless other survivors stand yet what remains unspoken is my commitment a pledge to my brother to my family and to all the survivors that I've met along the way my promise is that the collective pain we share will never be in vain thank you thank you Miss cavalo Miss Brewer thank you for the opportunity to speak to you today regarding the pro proposed amendments to the sentence and guidelines regarding youthful individuals my fellow panelists have expressed to you more eloquently than I ever could the effect that uh juvenile crimes have on victims but I will try to express my opinion as someone who works in the system we recognize that there is a need for Criminal Justice Reform and we support those efforts but there is also a need to recognize the significant trauma that victims experien as a result of crimes committed by juveniles as an attorney who represents victims of crime and juvenile adjudications I regularly see victims struggle with their experience with the system the reality is that many victims are traumatized repeatedly first when they become victims and then throughout their experience with the justice system that trauma is not diminished in any way because the crime was committed by a youthful offender the harm is the same whether it was committed by someone who is 16 or 36 we ask the commission to reject the proposed amendments and maintain a balance between the rights of victims and the rights of Youth Oregon is likely similar to states around the country and its reconsideration of the way youthful offenders are treated at disposition there have been significant changes to the juvenal justice system here including a change to the way juveniles who commit the most serious offenses are treated before 2020 juvenal over the age of 15 who committed serious crimes such as rape and murder were charged in adult C court and cases could be transferred to juvenile court that changed in 2019 when the Oregon legislature passed a bill that designates all youth cases to juvenile court prosecutors must file a motion to wave a case into adult court and a hearing is held since this new procedure was implemented in 2020 three juvenile cases in the entire State have been waved into adult Court the result is that juvenile court dockets are now stacked with the most serious crimes that we see and some of the most violent crimes committed for victims juvenal report can be a very challenging venue the focus is entirely on the offender which is appropriate but one of the keys to True Rehabilitation is responsibility by removing the consideration of criminal history and sentencing the proposed amendment detaches the youth from the responsibility for his offenses this would be minimizing a use responsibility for prior acts and erasing any prior victims trauma further failing to consider a youth's complete criminal history limits the Court's ability to consider the totality of the circumstances and places the community and the victim at risk to appropriately sentence a youthful offender the court must be able to consider the full history of the youth this is the only way to meet the objectives of sentencing which must reflect the seriousness of the offense and protect the public from further crimes the victim also has a right to protection and failing to consider previous adjudications may put the victim at greater risk of future harm as an example I represented a child victim who had been sexually assaulted by an older cousin the cousin had previously been involved in the juvenile justice system for several less serious incidents at DIS position the court took into consideration this previous history and recognized the escalation of the behavior in order to Fashion a sentence that would meet several goals allow the youth to accept responsibility for his crimes craft a plan for rehabilitation and keep the young victim and other family members safe from future harm without the history the cour would have been sentencing in a vacuum and denying the victim their right to protection this case also points out a reality among the juvenile cases that we often see the victim of a juvenile is often a juvenile themselves and it's not uncommon that the victim is younger and more vulnerable more vulnerable these victims are not well served by ignoring prior offenses and sentencing for a victim of a juvenile offender the disposition phase of audic ation is extremely difficult and often retraumatization of the youth there is often a lack of recognition for the harm suffered by the victim the court hears mitigating evidence on behalf of the youth there's often a team supporting the youth and there are usually multiple discussions about what is best for the Youth from the perspective of a victim suffering the loss of a family member a serious physical injury or a sexual assault there is no balance to the proceedings supporting victims include a fair balance at disposition allowing the victim to be heard allowing mitigating evidence on behalf of the youth including a complete picture of the offender's criminal history in order to Fashion an appropriate sentence that meets the goals of sentencing victims routinely face significant barriers in their attempts to access Justice reporting to police invasive physical examinations undergoing multiple interviews testifying repeatedly and navigating the justice system can cause significant trauma ignoring a youthful offender's criminal history would be one more barrier victims would face in Seeking Justice denying them the opportunity for a sentence that reflects the seriousness of the crime and the whole person who committed it fundamental fairness requires the courts consider the totality of the circumstances in fashioning the most appropriate sentence thank you and I'm happy to answer any questions thank you Miss Brewer thank you all thank you ladies I turned my Commissioners any any questions um thank you all for your statements they're um just compelling and certainly give us um a uh really direct and informative view of the victim perspective from the folks who can speak to that um the most eloquently and directly um you know my only experience is in federal court and of course in federal court we have the Crime Victims Rights Act um you know at every hearing um the victim coordinator um with the uh us attorney's office makes them aware um of the hearing and their opportunity to be present and certainly make a statement are um at sentencing are there other things that we in the court system can do um to ensure that those victim voices you know and and certainly I understand your positions on on the current um policy issues that we are you know struggling with and grappling with but are there other things that would um be helpful um for victims as far as being a part of the process you know again my my experience is limited to the federal and so um just wanted to ask um that question yes um so I can only speak to what I experienced in Massachusetts and how that court system and the victim Advocate system like how all that worked and it was honestly it was amazing our our victim Advocate was great she made us aware of every trial every court date it was phenomenal I uh as said in my my little intro bio I am a contact person for a nonprofit organization um and during these annual conferences that I attend I hear that not every state has these victim programs like as solid as Massachusetts does and it's it's really really sad most of the times if uh say for example um my I don't even want put my name in it Angela's father is killed um but they haven't found Angela's father's killer she's never assigned a victim Advocate she has never notified of the resources available to her and I'm not sure if this is a federal program or if it's a state progr but in Massachusetts we do offer a reimbursement for funeral costs for that of one who is who's murdered um somebody like that would never know that those programs exist and it it's really lacking I'm not sure this isn't my wheelhouse I'm not sure what the appropriate uh response to fix that is however I can just outline that there there are issues state to state city to City and I think that more it needs to be looked into more thank you mine was in 77 long before there were an office of victim services and before there were crime cleanup companies um but I still have fear and my fear is the guys come up for parole periodically if they were to get out of parole they know who I am Google easy to find me and I honest ly think if my as salent ever got out one of them did the decent thing and died in prison about 10 years ago but the other guy got out I I would be terrified and there's no you know federal witness protection program there's no V victim Protection Program and I honestly don't know how I will function at that point right now I'm I'm functional but there was a lot of years where I wasn't and um I don't know if they ever got out I would I would really be very frightened yes yes ma'am um just to kind of build on what she said um a similar thing happened with my family where one of the defendants was released on a thousand bail and I after my brother's murder I ran away right I ran away to New Jersey to New York pursue something different I couldn't bear to live where my brother did um but my parents still live there they need they actually bought a house across the street from the cemetery so they can visit him every day um and when he was released the fear the absolute fear in all of us that something was going to happen to them we all pitched in and we got the full work security system it's like Fort Knox at my parents house and it's a it's a real fear so I yeah I right I'm with you there fortunately I our case was in Tucson I lived in lived in California when my my husband wanted to move out of California when we when we retired so he said oh we can go to Arizona I can't I I can't I actually talked my nephew out of living in Arizona just for the fact that you don't know what's going on one of one of this had been released so it's like no you don't need to be in that area so my husband there's no way I can't I can't live in Arizona went to Texas instead um but I we are very very fortunate with the way it was set up in in Tucson when that happened the police came out and they had a victim Advocate a crisis intervention right there so she mom had that throughout so it was very very fortunate to have that that victim applicate right there to help her guide her through the steps and even in San Diego we travel with victim victim advocat so they'll go on a ride along and they're readily available they're great resource they're phenomenal resource helps helps a victim find a path to help them deal and so we have a murder okay well we've got resources the the crime crime scene clean up because right out the back door is where paramedics were working on my dad and the next day all that stuff is still there walk in and there's all this litter all the paramedics just Dro their stuff all over but having a cleanup crew come in take care of it all that it's great to have that resource like to add one more thing if I could like I said I'm functional and I have no problem talking to you I have no problem talking to large groups of victims and things I've talked to but the thought of coming here flying into Reagan Airport and taking the metro to the hotel by myself no no way I have a friend came with me because I can't ride a city bus alone still I can't ride the Metro alone I can't get in the back of an Uber because I don't know who's driving that Uber we took a taxi because at least with the taxi they've been vetted that fear is real and it doesn't go away um I moved out of California years later I live in California now but eight year eight hours away from where I was the fear is real and you don't get over it there's not a natural healing process for fear there just isn't and once once you've heard gunshot I I've been at Disneyland and the fireworks are going on and I had to go into a store so it would just be dampened a little bit because it was too loud it was sounding too much like my gunshot it's just oh yeah I did I was on good good yeah it the fear is real and that's something you really need to take into consideration because there's victims after us and victims after us and they all have the same fear and it's real and it's debilitating and a lot of people a lot of times it's a vicious circle because then they self-medicate and then they have more problems it's I'm fortunate I didn't get involved in self-medication but I was a mess for a long time I joke about being a recovering now everyone knows this but whatever your weakness is that's what you're going to do to to not feel that fear for just just a little while just a little while no one's going to murder me right now um because the rest of the time you feel that and it's it's traumatizing deil it is very debilitating because I shouldn't be functional none of us should be functional and yet we're here functional but I had to force myself to get on that plane because I start having a panic attack just thinking about the commute from the airport to the hotel alone it's hard question rosi um thank you so much Mr chairman and and thank you all for being here thank you for getting on that plane and um and um I really appreciate it um I I don't have any questions for you I just want to say that um the courage and Grace um that you all have shown um just being here but also telling um about the pain that you and your families have experienced um is extraordinary um I'm personally very sorry that the criminal justice system has added salt onto the wounds I've worked in the criminal justice system for 30 years on crime policy I'm embarrassed about some of the things that you talked about um and we're trying to change them and make them better um you all are a credit to your family and and to all the families who have been victimized um but even more than that um you're doing a great public service by being here um and we're all grateful for that so thank you very much a is thank you so much for your testimony thank you for your statements that you've submitted and thank you for your voice uh I don't think any other Commissioners have anything thank you on behalf of all of us at the United States czon commission thank you for listening to us and having our voice involved because we're a big part of this um you know there's always a victim and um it doesn't go away thank you thank you e panelists will provide us with the perspective of formally incarcerated people on this issue first we will hear from Dakota garmy uh who lives in Chattanooga Tennessee uh where she works full time as a logistics Clerk and studies fulltime as a student at Chattanooga State Community College whose mascot I understand is Tigers just like Jackson State so uh upon graduation though Miss garmy plans to work as a social worker providing Social Services to children in the foster care system Miss garmy also participates in the full circle re-entry program in the eastern district of Tennessee and is scheduled to graduate from that program in May second we will hear from Mr Ronald Evans a resident of hackin saac New Jersey Mr Evans works at two jobs while also volunteering as a mentor for the incarcerated Children's Advocacy Network the network is is a project of the campaign for the sentencing of Youth that provides support to forly incarcerated youth who like Mr Evans were sentenced to life in prison or other lengthy sentences Mr Evans is a father of one and a grandfather of two Miss garmy we' like to hear from you whenever you read um first I want to thank you all for inviting me here today and um I also want to thank you all for hearing me today um I believe for the last 10 years of my life I have not been heard um I was I grew up in and out of a DCS custody um the first time in Tennessee was for a dependent neglect case with my father for a domestic abuse situation um I went to school with the black guy that day and um the so the social worker contacted DC at my school and I was um taken into custody and I had filled a drug test that day for taking a XX um due to the situation that happened um that a friend at school had given me um due to that failed drug test um DCS placed me in a rehab facility at that time um when I was placed at that rehab facility I ended up meeting a lot of people who had drug addictions at that point in my life I did not have a drug addiction um I was treated like an addict way before I was ever an addict [Music] um as a child in um in and out of DCs custody [Music] um I never really had any rights I I was taken into that into custody that first time for a dependent neglect case but that was not the only time that I was in an out of custody I went into custody multiple times for Juvenile Justice cases as well um I I became I became an addict because I ran from that facility in DCS custody with some girls who were also addicts um that spiraled my my juvenile criminal history out of control that addiction did um when I was in the system I never had like any rights I I I had Guardian ad Liams and I had DCS workers that um spoke for me but I didn't have anybody that was there for me when I was in custody for the dependent neglect case I didn't have any contact with my father who was my only family at the time um I didn't have contact with anybody I was just in the system alone which is what made me ran to begin with um I ran all through my juvenile career I ran away from everything I didn't understand what was going on um at 18 I was not old enough to drink I wasn't old enough to smoke cigarettes but I was old enough to be sentenced to 16 months in the federal um federal system I'm not going to say that prison was all bad because that is where I grew up at that's where I learned to be who I am today I learned to be a woman there unfortunately for me that's where I had to learn those things um but I remember I used to sit in prison and I used to think about how I wanted my life to be once I was finally out because I was going to finally be able to have that freedom and be an adult to make these decisions for myself that nobody ever made for me I didn't have that support growing up and um once I was released I really took full advantage of that and um I am WR in college like I think my third or second or third month out of prison iron roll in school and I've done that consistently since I've been released um I also work full-time I'm in that re-entry program through the um my probation and through the federal defender office in Chattanooga um I have pretty good relationships with my family now today I'm able to have those relationships but from the distance that's necessary to maintain those relationships um I have really really great friendships um one of my best friends is here with me today actually supporting me and um I have a lot of goals that I want um to accomplish like um my opening statement said um I do want to be a social worker because I do want to be able to help kids that aren't heard in the system because I know how that feels um with all that being said I want y'all to please just acknowledge the fact that children are different children really are different and I hope and pray that that this helps somebody else so that the next child does not have to learn and grow up the way that I did and and and I yeah I just want to thank you all again for um hearing me today thank you Miss garmy Mr Evans make make sure your microphone is on honor commissioner oh thank you for having me and giving me this opportunity to share my story when I was 18 years old I was charged as part of a as a j conspiracy when I was 19 years old I was sentenced to not one but two life sentences as a teenager I was charged and arrested in federal court at that time for me it was very hard for me to understand my attorney sorry at that time for me it was very hard for me to understand my attorney at that time it was like he was we was he was speaking different languages like I couldn't understand him and he couldn't understand me he was always telling me to take a plea it's like I didn't know him and I didn't trust them the people that I knew and trusted told me to go to trial so I went to trial not knowing how much time I would receive or anything I remember when the first time I got arrested I was 13 years old I was so scared U me and my friends was playing in abandoned School uh which triggered us silent alarm and we was arrested for breaking the enemy when I was 15 years old I got charged for possess inent 1.5 gr of cocaine which I got probation on that completed my probation when I was 17 years old I got charged with a stru Justice interfering with a steam operation which I paid $100 fine everybody go up in different environments environment I grew in I grew up in was Jo infested like everywhere you look growing up everywhere it just jokes everywhere I mean all your friends do it it was just hard to get out of that environment growing up I didn't have a father figure or we just me my mother my mother had when she was 16 years old it always been about me and her I I believe everybody deserve a second chance in life I got the clemency by President Obama in 2016 I had did 24 years with three juile proud what what HS against me while I was in federal court man I remember when I was incarcerated waiting for something like this to happen just praying for something like this to just happen and I never thought I'd be here speaking to you guys about how it was when I was incarcerated was like it took like three or four years for me to really understand what a light sentence was it was like my mind wasn't fully developed or anything like that at that time I was just hungry for knowledge once I learned how much time I really had and and felt it I just start or try to learn as much as I could and take as many trades as I could certificate right here show you uh I was just trying to learn as much as I could cuz I knew one day that I would get released I have a good family structure uh work two jobs been doing it six years since I've been home and I'm still learning as because I went in there as a kid and I came home as a grown man I got my GED when I was in prison and took many courses that I could I Chang I changed a whole lot for the better and for my family and my mother most of all I just pray that y'all get the people out there that I left behind a second chance cuz everybody deserve a second chance we all make mistakes especially when we young as kids growing up in environments that we grow up in it's just hard to to not like I would say not to get in trouble but it's just hard to to understand certain things that's going on around you when you so young know I'm an advocate for I can um just try to help uh kids that's that's been incarcerated and just coming home and that helped me a lot when I first came home Brian Brian Stevenson was my La when I was going through trial he helped me a whole lot and I learned a whole lot from him I just thankful to have this opportunity to speak to you and I pray that y'all help the ones that I left behind thank you thank you Mr Heavens any questions I have a question for each of you uh U Miss garmy uh I believe you said you still participating in some sort of re-entry program and I just want to ask you because that's one of the things that this commission looks at and and stuff and the guidelines talk about it but I want uh you to tell us uh what what do you think about the particular program and the success that you're having in that particular program uh Vis any other programs um yes sir not you you're not actually I got it I didn't go nowhere um uh I actually um when I was first released from prison um I was in the halfway house and in the halfway house there was also a re-entry program that I was in um Project Return and between Project Return in Full Circle I I can say that they have helped me so much um the current reentry program that I'm in through my actual probation and through the federal defender office um I've made I have a mentor with them and I have made connections that'll help me um in um social work and um actually like some advocacy programs that are going on in Chattanooga Tennessee right now that they have just started so I've made some connections with some really good people as as well as learned like a lot of different like resources they bring people in to help with like credit and building h uh buying houses and how to go about those things those are things that one they're not they're not taught in public school and they're not taught really at all period in life and so they're it's it's very good to get that knowledge now yeah absolutely and I feel like that knowledge is it helps me when I have people that um are willing to help me learn how to do these things that I was never taught I feel like it helps me succeed today and Mr Evans I noticed that you're working with a group of incarcerated people in in in one of the nonprofits that you work with uh this uh commission uh is trying to receive the best information we can from all groups so what can this agency do uh to uh hear more perspectives from people like you formally incarcerated people people who had the two life sentences or a life sentence or how what can we do how can we hear from you all in a uh it's there a lot of us that's that that come home and just and with this I can Network and children incarcerated Network where we try to help the people that's coming home uh as much as we can um I me uh and when I got when I got the clim about President Obama uh it it h everything happened so fast like I was home within that when I got the announcement I was home within that week uh from doing 24 years it was like it it was so fast that like when I got to the halfway house like I haven't seen cars in a long time you know so I just said I by the window and just watched the car go by stuff like that it just I miss out on a whole lot um but uh but uh we just try to help as many as kids that we can help you know in the same situation that I was in or different situation like that thank you sir any M commissioner gleon just thank you both for your for being here for your written and your oral input and I want to Mr Evans the there's a way in which when you Mentor or speak to um kids there's there's a things you can accomplish because of your experience that none of us could ever hope to judge Restrepo has a a very successful re-entry program in Philadelphia they're great at it the contribution of formerly incarcerated individuals to those efforts there's just no way to overstate how important that is so please keep doing it sir and thank you for doing it yes sir thank you all so much for your testimony thank you for your written testimony thank you for coming forward and talking to us publicly grateful and uh keep up with our work and let us keep up with yours yes sir all right thank you thank you so much thank you e e our eighth and final panel for today look at all the [Laughter] smiles um they are going to provide us give us testimony regarding our proposal miscellaneous amendment to section 2d1.1 of the guidelines first we'll have the honorable Zachary Zachary Kia who serves as United States Attorney for the District of Rhode Island he was nominated by President uh Biden uh in 2021 and took office in 2021 Mr COA has served in the United States attorney offices in the district of Rhode Island Massachusetts eastern district of New York uh where he was first appointed as an assistant us attorney and handled and supervised a number of nationally significant civil and criminal cases I emphasize civil because I did that too and everybody always think yes's office only does Criminal stuff second we have dearra van doram again who serves as an assistant Federal defendant in the eastern district of New York she previously served as an assistant Federal defender in the southern district of New York the deputy Attorney in charge of the eastern district of New York and as an attorney in charge of the eastern district of New York Miss voram uh was previously in private practice engaged in pro bono death penalty litigation with the capital Defenders of New York and served as an assistant Dean for public service at NYU School of Law Miss voram will be speaking to our Amendment on circuit conflicts third we have de am I right oh I'm sorry that was yesterday no no you're still talking about 2d1.1 right all right this is the panel on 2d1.1 all right third we have de R Rhoden who is a manager partner partner excuse me at the law firm of wood house Rhoden Ames and Brennan LLC and Cheyenne Wyoming she is an at large representative on the commission's practitioners Advisory Group her practice focuses on business representation civil litigation juvenal representation and criminal defense and she practices in state and federal courts at the trial and appell at levels on a weekly basis fourth we have Joshua Lura who serves as a supervisor of us probation officer for the Middle District of Florida and is the vice chair of the commission's probation office uh probation officers Advisory Group he began his career in the eastern district of New York as a United States Probation Officer working in the supervision division in Brook in Brooklyn New York Mr Lua transferred to the Middle District of Florida in Tampa and later transitioned to the preus investigation unit where he was promoted to cus and guidelines specialist and supervisor finally we have Christopher quazar uh who is a staff attorney for the Maryland Crime Victims Resource Center Incorporated serving Crime Victims in Frederick and montgomary Count's Maryland Mr quazar uh serves as a member of the commission's victims Advisory Group he previously served as a chief Deputy prosecuting attorney for the Berkeley County for Berkeley County West Virginia Mr cona we're ready to hear from you whenever you are sir chair Reeves uh let me say as one former civil Chief to another far more distinguished former civil Chief I appreciate your gracious introduction um honorable members of the commission I cannot tell you how grateful I am for the opportunity to appear here this afternoon and share with you some of the Department's thoughts and concerns regarding the proposed amendments to 2D 1.1 um I I know that every member of this commission is acutely aware of the fact that drug fatalities remain at crisis levels across much if not all of our country and while the department remains fully supportive of Public Health efforts to help those who are struggling with addiction we also believe it continues to be important to hold drug traffickers accountable for the damage that they cause from the distribution of Fentanyl and other deadly drugs particularly when that conduct is motivated by profit and particularly when that conduct results in death or serious bodily injury the Department's goal here is to address this concern in a way that accurately reflects the impact of the criminal conduct reflects uh preserves appropriate sentencing discretion on the part of the sentencing judge and reserves application of mandatory minimums to those cases that truly warrant them the department believes strongly that even in cases where a mandatory minimum is not sought a sentencing judge should be able to make a meaningful and critically and appropriately guided distinction between a drug dealer whose actions lead to death and one whose do not and absent a mandatory minimum or the availability of other guideline factors a sentence that is based simply on drug quantity may not produce a just outcome When Death results to address that concern the department had previously recommended that the commission adopt a new base offense level and enhancements that meaningfully account for death or serious bodily injury resulting from drug distribution regardless of whether or not a mandatory minimum is charged that would allow for more consistent as well as more moderate sentences reserving the highest penalties for the cases that warrant them that continues to be our recommendation uh and we'd ask that you confer defer consideration of these amendments to consider that or other approaches but should the commission move forward uh with the proposed amendments I want to share some specific concerns uh particularly regarding some potential unintended consequences that May warrant your consideration we have particular concerns about option one by requiring the government to charge the mandatory minimum to trigger the 2D 1.1a Provisions option one could be viewed um as simply clarifying that these guidelines only apply when the defendant has been convicted of an offense involving death or serious bodily injury but there is also a reading of the proposed language that could be interpreted to preclude what is a now common practice of stipulating to the application of those guideline provisions under 1B 1.2 in cases where a mandatory minimum isn't charged those stipulations um are frequently of great benefit because they provide a mechanism within the guidelines to give the sentencing judge a more accurate picture of potential culpability than would drug weight alone in cases where a mandatory minimum may not be necessary or appropriate if option one were interpreted to preclude those kinds of stipulations it could have the unintended consequence of causing prosecutors to seek mandatory minimum more frequently if the commission proceeds with option one we strongly recommend that you clarify that the parties still have the ability to stipulate to the application of the 2D 1.1a offense levels in cases where a mandatory minimum has not been charged i' note that the federal Defenders likewise recommend this um and there have actually been some preliminary discussions between the Defenders and the department on this issue this week um we have a second concern about the portion of option uh of option one that addresses recidivist defendants um the current proposal would require prosecutors to file 851 notices to trigger the higher recidivist base offense levels but filing those notices will often result in mandatory minimum life sentences and thus the higher base offense levels predicated on recidivism will not have a meaningful impact on the defendant's sentence and so in that scenario under option one prosecutors would need to choose between having no enhancement for a recidivist defendant or seeking a mandatory life sentence which again could lead a to a marked and unanticipated increase in the number of life sentences in such cases to avoid that result we would recommend that the commission refrain from linking the recidivist enhancements to the filing of 851 notices and make no changes to the recidivist Provisions um with respect to option two we do not oppose the removal of the term offensive conviction thus permitting judges to apply the death or serious bodily injury offense levels without requiring mandatory minimum charges uh and we know that under option two the parties would also remain free to argue for or stipulate to variances or departures from the applicable Bas offense level um while we still continue to have some concerns about the applicability of 851 notices under option two um those are somewhat diminished because the notices are less likely to trigger mandatory life sentences thank you thank you Mr con Miss Von daram good afternoon again thank you chair re and thank you Commissioners um we appreciate you taking up this issue this year Defenders are not asking for any policy change to 2D 1.1a or for softer penalties solely for a language clarification so that the commission's long-standing intent that these enhanced base offense levels apply only in the case of conviction under circumstances specified in the statute cited we want that intent to be followed we ask for the clarification because we learned that some courts were applying 2d1.1 a1's base offense level of 43 which results in a guideline range of life where the government not only had not filed an 851 information but in fact had entered into Express stipulations and plea agreements that it would not be filed in order to avoid a life guideline so situations not where the prosecutor's hands were tied but where the judge um was finding it applicable contrary to the intent of this convention and the intent of the parties while we recognize that such a misapplication has impacted only a small number of individuals that impact was of course severe option one which explicitly ties the enhanced base offense levels to the statutory requirements would prevent this misapplication we absolutely agree um with the Department of Justice that the parties need to continue to have the flexibility to negotiate guidelines that are appropriate to the specific facts so the Defenders are asking the commission to adopt option one but also to add additional language to it stating that enhanced base offense levels may be applied pursuant to a stipulation of the parties this would ensure that these enhanced base offense levels triggering a life guideline would only apply in two instances first if the person is in fact subject to the statutory enhanced penalties for a drug offense resulting in death or serious bodily injury committed after sustaining a prior predicate conviction that is where doj's own charging policies applied to the specific facts of a case lead doj to make that decision second where both parties agree that an enhanced base offense level should apply in death resulting cases around the country as Mr cunha mentioned including in numerous cases in the Southern and Eastern districts of New York where I practice parties already have been entering into a wide variety of guidelines focused stipulations that account for the specific facts of each case but allow a non-life sentence sometimes in the 0 to 20 range sometimes in the 10 to life range but without the life guideline and we think it's important that we're able to continue doing that um Defenders do not support option two which permits application of these enhanced base offense levels if an offense involved death or serious bodily injury I mean first of all if you use involved you're going to walk yourself into a categorical analysis problem but putting that aside by removing the offensive conviction language option two would wreak a dramatic policy shift from 2d1.1 grounding of the base offense levels in the charging statutes it would allow process ccors to circumvent the burden of proof and would require that courts consider all relevant conduct including the conduct of others and depending on this year's amendments acquitted conduct to calculate a guideline range that tracks enhanced statutory penalties that don't apply that would be contrary to the commission's intent and to the opinions of all five circuits to have addressed this issue all of whom have found that death or bodily injury must be proven Beyond A Reasonable Doubt now the uh proposal from last year by doj that Mr kuna referenced that the commission add a new set of intermediate enhanced base offense levels to account for situations where death resulting is based on relevant conduct suffers from these same issues um where it disentangles the um base offense levels from the statutes of conviction um and I would suggest and of course we've long urged a full overhaul of 2D 1.1 um and certainly if the commission were to undertake that it could consider rather than having new enhanced base offense levels based on relevant conduct having a specific offense characteristic based on death or Serious botly injury which would be more in keeping with how other guidelines treat it similarly they could be a a s so for being motivated by profit or other things um as opposed to adding in new enhanced base offense levels but for this cycle we ask that the commission just make the limited clarification of option one plus the stipulation language um and I think the concern raised by mruna that the department might be forced to file more 851s is addressed by the stipulation language that we agree on that would not be necessary if the parties had stipulated to en hire offense level um and certainly I know in the district of Rhode Island as in the southern Eastern districts of New York it's also frequently the practice that the parties enter into a plea agreement but don't stipulate to the guidelines exactly or allow certain areas to be argued and that way the court where the parties can't agree on the exact guideline can determine that based on the arguments of the party as well as based on the 3553 a factors I think handling it through option one plus the stipulation would give courts discretion would give the parties who have a granular view of the fact the ability to arrive at reasoned and fair outcomes and would allow you know a taking account of the harm um from the victims of these offenses thank you thank you Miss VOR Miss Road thank you once again for the opportunity uh the peg doesn't have a whole lot of extra comments on this topic uh aside from the Defenders our initial con our initial option was option one we did have a concern that that was going to force more 851 filings um we then talked to the Defenders as well about this issue we would also support clarification in the guidelines um where the parties could stipulate to enhancements or to different um offense levels based on the severity of the action or if there was a death that resulted um and that's really all the comments I have thank you Miss rhen Mr Lura thank you to the commission for the opportunity to provide Po's perspective on the proposed amendment poak has observed that the current section 2d1.1 Suba does not capture through relevant conduct the harms associated with the cases in which a defendant has been convicted of a drug distribution offense but whose conduct involved causing death or serious bodily injury currently there are only two ways in which a defendant who distributes drugs that caused another person's death are captured by the guidelines either they are convicted of an offense that establishes that accountability or they engage in a plea agreement under Section 1B 1.2 Suba wherein they stipulate to their accountability for that death and agree that it is their intention that their guideline calculation be based on that more serious offense absent these two approaches the guidelines will not capture the defendant causing a death through relevant conduct po has also observed that many of these cases involve small amounts of drugs distributed friend to friend based on whether the defendant's conviction includes the cause causing death element the outcome can be extremely different for example if the defendant was charged with a 21 USC section 841 b1c offense that caused a death and they are only accountable for a few grams of fentanyl their base offense level would be 38 however if they pleaded to the Lesser included offense of distribution without the element of having caused the death but the evidence shows the fentanyl they distributed was in fact the cause they would have a base offense level of 12 an additional consideration in this example would be if they happen to have zero criminal history points the only guideline accountability for the death would be that they no longer qualify for a forc 1.1 reduction chapter 4 would be the first time that we are asking whether the offense resulted in death or serious bodily injury through a normal relevant conduct standard a significant majority of poag supports option two which allows for the case offense level to be determined under relevant conduct if the offense involved death or Serious botal injury but does not require the defendant to have been convicted of the corresponding increased statutory penalties this moves the issue of the causation of the death from a standard of Beyond Reasonable Doubt to that of preponderance of the evidence which is the standard for all other guideline matters for example if a defendant was charged with a firearms possession the guideline allows for a cross reference to a more serious chapter 2A guideline when the defendant used the firearm in connection with the commission of a homicide that cross reference is based on a preponderance of the evidence however when a defendant distributes a drug that causes a death the standard becomes Beyond a be becomes Beyond A Reasonable Doubt presently something as uh significant and serious as causing a death is not captured under 2D 1.1 and the judges are left without the guidance of the manuals intending to provide po also discussed the change in the language related to including 851 as a mechanism for capturing when the prior convictions should be included in the base Defense level when the language was quot one or more prior convictions for a similar offense end quot it caused confusion last year the commission clarified this further by altering this language to quote after one or more prior convictions for a serious drug offense or serious violent felony end quote in the higher base offense level and then just the quote felony drug offense end quote in the other relevant base offense levels this definitely provided clarity as we are familiar with the applicable standards for those two statutory definitions however the proposed amendment is now quote as established by the information filed by the government pursuant to 21 USC section 851 end quote we wonder if this provision written in this manner won't return us towards more confusion this language directs that the increased base offense level applies if the A51 enhancement is filed but it does not clarify if those penalties have to actually apply if the government files an 851 notice they have quote established by information filed end quot that the defendant had the prior conviction discussed if they revoke that notice through a separate filing or negotiation the enhanced penalty Falls away but some might continue to apply the enhancement based offense level pointing back at the initial filing and while they may not be right to do so they not technically wrong either which is just the type of situation that can cause a circuit split under this standard there is no requirement that the enhanced penalties uh based on an 851 needs to have applied only that the government filed information to establish that there was a prior convi prior relevant conviction it may be worth the commission commission's time to consider adjusting the 851 language to effectuate the commission's intent by adopting something closer to quote for a serious drug felony or violent felony that resulted in enhancing the statutory penalties end quote thank you for the opportunity to provide poag thoughts thank you Mr Lauria Mr quar thank you chair Reeves it's always a pleasure to be scheduled last on the afternoon docket yeah vag appreciates the opportunity to be able to speak this afternoon death and serious bodily injury caused by drug offenses Ira families and communities Across America the CDC notes that in 2021 over 880,000 people died in the United States from opioid overdoses including heroin and Fentanyl overdoses that number is a ten-fold increase from 1999 victim families suffering the loss of loved ones and Community is seeking to provide safe living environments for their people have a strong interest in drug offenders accepting responsibility and being held accountable for the harms caused by their criminal drug offenses the commission's proposed option two revision of section 2D 1.1a 1-4 removes what we consider rigid language quote the offensive conviction establishes that death or serious bodily injury resulted from the use of the self substance end quote and replaces it with what we believe as more flexible language the offense quote the offense involved death or serious bodily injury resulting from the use of the substance this proposed change allows relevant conduct which is established by a preponderance of the evident standard to be the basis at sentencing for determining whether the offense involved death or bodily injury from the substance hoag's public comment and I think Mr loria's comments today support option two because it allows relevant conduct to better capture the actual harms caused by the offense which is an outcome vag views as favorable to addressing the harms to victims and victim families doj's public comments note that option two will grant flexibility for the government and the the defense to argue or stipulate to variances or departures from the applicable applicable base level and for judges to impose individualized sentences without the restrictions of mandatory minimum sentences the government may still charge offenses carrying mandatory minimum sentences for cases deemed appropriate if option two expands the Alternatives by which offenders May accept responsibility for the harms they caused in this instance without the risk of facing mandatory minimums vag finds that expansion of Alternatives helpful to victims and victim families thank you for listening to all of your participants over the last two days we appreciate that any questions yes busy May thank you all so much for braving the last round here today uh we really appreciate it um I wanted to just go back to something that I think I heard and just make sure that I did that if if the commission were interested in clarifying the original intent of that base offense level do I understand that the Department of Justice The Defenders and Peg uh all would want some stipula some language allowing for the parties to stipulate in addition to what's already in 1B 1.2 yes that's correct and in fact as Mr Cuna mentioned and as Miss rhen mentioned we've already begun discussions and we're hopeful that we'll be able to propo propose language to the commission specifically as to the stipulation I just want to be clear that that only resolves some of the government's concerns with option one but yes our concern would be that because of the subject of the statutorily enhanced language in proposed option one that the commission should make very clear that stipulations remain available commissioner one that same vein if there were a change to option one where it included the stipulation provision U I think Defender position is that they would prefer that to option two uh what is the doj's position between that version of option one and the option two um and what is Po's version of that version of option one versus the option two you endorsed I don't mean to be in any way flippant doj's preferred option is still what I'll call option three which is starting from scratch with a new base offense level as between the two we have fewer concerns with option two um and if the commission goes with option one we or we would add him ly support the stipulation language I think that's the best way I can put it in our discussion actually uh talked about um our experiences in which stipulations would be put into the fleet agreement but uh had no no guideline attachment really um under 1B 1.2a you need to to have that second component where you uh the defendant um agrees that it's their intention that they be held accountable at that higher level so it it isn't enough to just say uh as a defendant I caused the death it has to also say I caused the death and I it is my intention that I be held accountable at that higher level under 1B 1.2a um anything uh that that would make that more more easily applicable to solve that issue I think would be well appreciated uh our our position is still option two but that that would definitely be uh a well appreciated uh approach just to jump in um to commissioner Wong's question those are the types of plea agreements um that we have been entering into as officer Lauria says that not only say I was responsible for the death or the but for cause but also stipulate to the offense level sometimes the parties then go on to say and the parties jointly recommend a lower sentence there I have one in front of me where the guideline would be 38 but but the parties jointly recommend 120 months in the particular you know circumstances of the case obviously there's also 11 C1 C's you know and other things but I think officer lurry is right we need to have um plea agreements that hold people accountable but also that account for the specific circumstances including as he said that a lot of the cases we see are addicts Distributing friend to friend and the circumstance of which friend died and became the defendant became the victim and which one didn't die and became the defendant is only a matter of chance have another question yes um I'm curious what uh folks think about Po's suggested edit to that last line on the established by the information filed by the government pursuant to 851 and the switch to result I I don't have it in front of me I'm sorry I know it's in here something akin to for a serious drug felony or serious violent felony that resulted in enhancing the statutory penalties uh and and the the reason why we kind of landed on at that point is um the idea being that when you file an 851 that's the that's the triggering action or the initiating action and the result that really you're trying to capture is the enhanced penalties have attached or or are are applied and so it it made sense to us to kind of focus more on that that final result really um I agree with officer lur and we had raised this concern in our written statement and cited the number of times in which doj files an 851 but then withdraws it and noted that the language as currently written could lead to um a finding that it had been established even though it was withdrawn so I certainly appreciate poag suggestion I haven't had time to review with my superiors the exact language but I think it makes good sense and IT addresses a concern we had as well so we appreciate that likewise I have not had the opportunity to discuss that at length with the powers that be at doj I think you know again we I think we've articulated our concerns about the necessity of the 851 and how some of those are amiliar with the stipulation language we're just about done I I want to thank U Mr quazar and Miss Rhoden for coming and point out that the rest of the panel 60% of the panel has a very deep root in the eastern district of New York as do I which makes me feel very proud makes you feel like you're not alone ladies and gentlemen this uh wraps up our two days of hearings we've heard a lot we've heard from our stakeholders in the system we've heard from commenters experts the thinkers the doers we heard from the victims and we also heard from the formally incarcerated and we've heard different stuff about maybe people getting involved in the criminal justice system as early as four years old 17 years old automatically no matter what you do you're in the adult system we've heard all of that we heard about aidic conduct most of yesterday about how we uh we will address that um our work is cut out for us Commissioners commission staff members uh because we've heard you and we want to do the right thing we want to do the right thing when I heard that one people who had been through Bop actually survived Bop that's a good thing when our system adjudicates someone to two life sentences for engaging in a conspiracy two life sentences I didn't hear anything about a death having fallen that two life sentences and I think about what I do as judge Bri told me when I sort of came on to replace him Colton what are you going to do about your day job and my day job is back in Mississippi and that huge portion of my day job is to send this individuals to the custody of buau P who has total control of their life and as I remind myself and remind the people out there every day I've never served a day in prison and most of the people who sentence people have never served a day we don't know what it's like we don't know what it's like to serve a day a month a year or a life sentence so our job is tough here to try to make sure that our policies are are applied equitably make sure our policies work make sure that we do what Congress has asked us to do through the senat and Reform Act and I just ask you all to bear with us and keep giving us the the the information that we need to make sure that Justice is always the focus of what we do so with that said I thank you all for being with us these past two days I want again thank every panelist everybody who offered testimony submitted statements everybody who supported those persons who submitted testimony and submitted statements those people who came through the uh live stream I thank each of you I thank the staff because our work is not done we're really about to work and the staff is really is helping us do what we believe would be the best thing for the United States seny commission so we've heard your Tes Tony we will consider your testimony and we will use that testimony in making czon policy I hope that is right that is fair and that is just the hearing is now Jour thank you [Music] [Applause] [Music]

Channel: United States Courts

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Length: 318min 6sec (19086 seconds)

Published: Thu Mar 14 2024