U.S. Sentencing Commission: Changes Needed to Improve Effectiveness

Published by the Government Accountability Office on 1990-03-07.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                   United States General Accounting     Office

For Release on       U.S. Sentencing  Commission:
Delivery  at         Changes Needed to Improve
1:30 p.m. EST        Effectiveness
March 7, 1990

                     Statement      of
                     Lowell Dodge,        Director
                     Administration        of Justice     Issues

                     Before the
                     Subcommittee    on Criminal Justice
                     Committee on the Judiciary
                     United States House of

                                     ; $ I_ \ -’ i
                                                                   GAO Form 160 (12/W)
                     U. S. SENTENCING COMMISSION:
                        SUMMARYOF STATEMENT BY
                             LOWELL DODGE
                    u. S. GENERAL ACCOUNTING OFFICE

The Sentencing    Commission was created        in 1984 to develop
guidelines   for use by federal       judges in sentencing     criminals.
Although sentencing     guidelines      went into effect    in November 1987,
the Commission has fallen        behind on major priorities       such as (1)
establishing    a system to monitor       sentences   imposed under the
guidelines   and (2) evaluating       the impacts of the guidelines.
Monitoring    and evaluation     are critical      as a basis for amending
the guidelines      and improving    their    implementation,     which in turn
are the central       items on the Commission's         current  agenda.    Yet
the Commission has missed every deadline              it has set for the
monitoring    system and parts of it are still             under development.
On evaluating      impacts,  the Commission has yet to complete a basic
evaluation    design.
While the constitutional      challenge     resolved     a year ago in part
explains  these delays,    organizational       disarray    at the Commission
is also a factor.      We identified      several    aspects of this
--    The Commission has not established      a game plan for        guiding
      its efforts  through the post-guideline     development        period.
--   The Commission did not establish,     until     recently, clear
     lines of authority defining   a central     role for the staff
--   Research led by an individual         commissioner   appears to
     parallel  staff    research    and may come into conflict      with    it,
     and another     commission-led    research   project  operated
     without  accountability.
--   The Commission has experienced          vacancies   and turnover in key
     positions.    In its four years,        the Commission has had an
     equal number of staff     directors.          The Commission has now
     been without   a research    director      for more than 18 months.
We also found, during     a limited    review,    weak internal  controls
over travel    and time and attendance      reports,   and poorly defined
policies    for human resources     management.
We offer   recommendations    to Congress and the Commission for
making improvements     in the management and operations   of the
Mr. Chairman                    and Members of                 the     Subcommittee:

We are pleased                        to be here            today      to discuss                the         results      of our
review            of the         United       States          Sentencing                 Commission.                   At your
request            we focused               on the management                      and operations                      of the

The Commission's                        primary           responsibility                     under      the      Sentencing
Reform            Act     of     1984 was to develop                        guidelines                 for     use by federal
judges            in sentencing               criminals.                   The Commission                     has issued             an
initial            set     of guidelines                    and has made amendments                              to them.             These
guidelines                survived           constitutional                     challenges,                  and the Commission
is working               hard          to win acceptance                    for         them in the              Judiciary            and
the       criminal              justice       community               at    large.

A second            major             set   of responsibilities                          assigned             to the Commission
was to monitor                        guidelines'            sentencing                 and to evaluate                  its
impacts,            as a basis               for         validating             the      guidelines              and determining
whether            they         need to be changed.

The Commission                        has fallen           behind          in     its        efforts          to accomplish               the
second            set     of     tasks.            It     has missed              every         deadline          set     for
completing                its         sentence           monitoring             system.              This      system,          a
prerequisite                    for      assessing           the      impact            of    the      guidelines,              is    not
yet       fully         operational,                    and parts          are     still          under        development.

Moreover,                the     Commission               has yet       to complete            the design                  for        the
evaluation                   called       for      under      the     statute.            In response                 to input
from          its      Research          Advisory           Group,       the     Commission             is cutting                    back
on certain                   aspects       of the          evaluation           as initially              proposed.                     The
Commission                   has already            scaled      back      the      size     of    its      monitoring
program              in response                to earlier          recommendations               from          the        same

Our work               for     the      Subcommittee               identified         factors           leading              to
these          conditions.                 The constitutional                    challenge         explains,                     in
part,          some of these                    delays.        But      another      key factor                 has been
significant                   organizational                disarray        at    the      Commission.

--   The Commission                      has not           established           a game plan              for         guiding
        its         efforts           through       the     post-guideline                development                 period.

--   The Commission                      did      not      establish        and follow,            until              recently,
     clear             lines          of authority           defining           a central         role          for        the
     staff             director.                Instead,       direct       communications                 between
        individual               commissioners               and members of the                   staff          were
     frequent.                   This      practice          disrupted           efforts         of successive
     staff             directors           to carry          out     work       assigned         by the Commission
     as a whole.

--   Research                 led by an individual                      commissioner             appears              to
     parallel                 staff       research          and may come into                conflict                 with        it.

       Another           commissioner-led                research             project        has operated
       without           accountability.                 The results               of the          work were not
       accepted            by the Commission               after             expenditure            of Commission
       resources.              The potential              exists             in all       research       produced         by
       an individual                  commissioner         that         it     will       reflect      the
       perspectives                 and concerns          of that             commissioner;            one
       commissioner                 acknowledged          to us that               he pressed          his      own
       personal            agenda       in his      research            effort.

--     The Commission                  has experienced              vacancies              and turnover            in key
       positions.              In its       four      years,        the        Commission            has had an
       equal       number of staff                 directors.                 Former       staff      directors
       found       it     difficult         to manage in an environment                               where       they
       shared           authority        over      the    staff         with          individual
       commissioners.                   Furthermore,              the    Commission                has now been
     without             a research        director          for        more than            a year      and a half.

We also          found,        during       a limited             review,          weak internal               controls
over      travel          and time        and attendance                     reports,        and poorly          defined
policies           for      human resources               management.

What needs               to be done to put                the Commission                   back on track?                 We
have      recommendations                 to Congress              and the             Commission        for     making
improvements                in the management                and operations                   of the Commission
which      we offer            below.

To assess        the management            and operations              of the          Sentencing
Commission,         over     the past       6 months         we interviewed                   all      current
and former         commissioners,           several         current       and former                  staff
(including        detailees)           and contractors,               and others              who have
frequent     contact         with      the Commission.                We also          examined               relevant
Commission        documents,           attended      Commission           meetings,                 and reviewed
the Commission's             policies       and procedures               on travel               and other
administrative            operations.             In addition,           for         the     past      2 years,
we have followed             the progress           of   the        implementation                  of the
sentencing        guidelines           by interviewing               Commission              staff,           attending
training     sessions,          reviewing          plans,      and interviewing                       court


The Commission's             monitoring        and evaluation                  activities              are
important        because       they     provide       information              on how well               the
guidelines         are    operating        and what         their      impacts             have been.              These
activities         include      development          of a system               for     monitoring
sentences        imposed       under     the   guidelines,             a plan          for       evaluating              the
operation        and impact           of the   guidelines,             and a case review                        system
for    assessing         how well       probation        officers         apply            the      guidelines.
All     three     projects          have missed                 the      original              deadlines             for     their
completion.              While      Commission                officials            explain             that         shifting
resources         for     these        activities               to higher              priority              projects
contributed             to these            delays,       we believe              better              planning            might
have enabled             the Commission                 to address               more of              its     priorities
concurrently             rather        than      sequentially.                    Further,                  the     sentence
monitoring             system      and the            guideline           evaluation                  plan        are being
revised,         so that         neither         will       be as comprehensive                              as originally
planned.          Over 2 years                have passed                since         guidelines'
implementation,                and,         despite       the        scaling           back          of these
activities,             the monitoring                 system           is not         fully          operational                and
the     evaluation         plan        is not          final.

The sentence             monitoring             system          was expected                   to be operational                        in
November         1987,     but        its     development                has experienced                      repeated
delays.          This     system            was expected                to contain              detailed             data        on
every      defendant           sentenced              under      the      guidelines                  (eventually                over

40,000        cases      per     year).          Parts          of      the    system           are up and running,
but     others     are     still            in the      developmental                   stage.               Because         of the
delays        and the magnitude                  of the          undertaking,                   the         Commission
recently         cut     back on the             size         of the          project,               taking         the     advice
of    the Commission's                 Research           Advisory             Group,           a panel             of outside
experts         who reviewed                the Commission's                   plans           for     this         system.
Even with         the     cut      backs,        the Commission                   does not                  expect         the
system        to be fully           operational                 until         fiscal           year         1991.
The Commission                also     experienced                 a delay         in the        completion              of     its
guideline         evaluation               plan.        Originally             planned           for     completion              in
December         1988,        the plan         will      be used as the                    basis        for      an
assessment         of the guidelines'                         impacts        on prosecutorial
discretion,            plea     bargaining,              disparity             in sentencing,                    and the         use
of and alternatives                    to     incarceration.                   Currently,               the      plan      is
expected         to be completed                    in June         1990.          The Research                 Advisory
Group's         concerns        about         the      plan        were     similar          to their            concerns
about      the monitoring                  system.            On the basis               of their
recommendations,                the Commission                     is cutting            back      on the         scope of
the     plan.      Even so,            given          the magnitude                of the work                to be done              in
order      to meet        the December                 1991 statutory                 deadline            for     the
study's         completion,            we are          concerned            that      further           delays          may
occur.          Some Commission                officials             expressed             the     same concern.

Delays        in completing                the monitoring                 system         and evaluation                  plan
create        a number of potential                      problems.                 For     example,             the
Commission          does not have complete                           information              on how the
guidelines          are being              applied        in the          district           courts.
Furthermore,             the     Commission's                 evaluation             study       will         need selected
data      from    the monitoring                    system.          The Commission                     is required             by
the     act     to submit            the     results          of    its     evaluation             study         to us 5
months        before      we report                to Congress.               If     the     Commission's
evaluation          is not           completed          on time,            we may not be able                        to meet
an April         1992 reporting                    deadline         contained              in the        act.

The Commission                 has experienced                       similar         delays          in establishing                  a
case review              system         for     assessing                how well           probation             officers
apply      the         guidelines.              Probation                officers           are      responsible              for
investigating                 the    facts          of a case,.              including              the     offense
committed              and the defendant's                       criminal            history,             and calculating
the     proper          guideline             sentence           for      judges           to consider.
Originally              planned        to be operational                       in November                  1987,      the
Commission              finally         initiated              its       review       system              in January          1990
with      the        selection         of the          first            63 cases           for      detailed          review.
They plan              to review         a total            of       1,100     cases             sentenced         during           a 12-
month      period.             Prior          to that,           the Commission                     did     limited        case
reviews          for     13 of the             94 judicial                districts               at the         request        of the
Administrative                 Office          of    the       U.S.       Courts.                These reviews
identified              some problems                with        how the          guidelines                were applied.
Problems             included        inadequate                consideration                     of relevant           conduct            in
calculating              the      offense           level        and incorrect                    calculation             of terms
of     supervised             release          and of          fine       ranges.                Until      the     current          case
review       effort           is completed,                 the         Commission               has limited
information              on how accurately                       probation             officers             are applying              the

It     should          be noted        that         the Commission                   plans          to report          the
results          of     its     case review              in       its     annual           report          for    1990.         The
report          is     to describe             common problems                      that         probation          officers
have calculating                    guidelines              sentences.

What factors                  have led      to these         delays?              While     our work        identified
no single             cause,      we observed           considerable                disarray          in the
organization                  and management          of the Commission.                       Clearly        the
constitutional                  challenge       to the        guidelines,                 resolved        in January
1989,         delayed          the Commission's              efforts           in many areas.               We noted
several         factors          relating       to the        organization                 and management              of
the Commission                  which    have come into                play:          (1)     absence       of a
long-range              plan     to guide       the     Commission's                efforts          in the post-
guideline             development           period;          (2)     lack         of clear        lines     of
authority;                (3) problems          posed by commissioner                         involvement             in
research;             and (4)       vacancies         or turnover                 in key positions.

The Lack             of a Long-Range
Planning             Process

For     its     first          18 months      of operation,                 the     Commission            had a
single,         overriding           objective          --    the      development             of the       initial
set   of sentencing                 guidelines.              Once the          guidelines            were
completed,              the     nature      of the      workload            changed         and the        Commission
began dealing                  in greater       depth        with      other        statutorily            defined
responsibilities,                   including         guidelines             training,            amendments,              and
monitoring              and evaluating            how the           guidelines            were being         used.
Though         the      Commission          is now focusing              more resources                   on such

areas        as evaluating                 the     impacts              of    the      guidelines,                 it          has not
developed            and approved                 a long-range                  plan       for       guiding              it     through
the post-guidelines                        development                  period.            Such a plan                   would           assist
the Commission                 in assessing                    future         work        and resource                    needs for
its     ongoing         research            program             and its           other           activities.

Although         some Commission                       staff       developed               annual          work plans                    for
use during            the      last        two budgeting                     cycles,            according               to current
and former            Commission               officials,                there         is a need for                     more "top
down" planning                 and clearer                communication                    of the Commission's
priorities            to the          staff.            In 1989,              the      Commission               chairman
developed            lists      of suggested                    priorities                for      future          Commission
work,        which      were considered                        and agreed              upon by the                 full
Commission.                  However,          Commission                officials                told      us that              staff         on
priority         projects             --    especially                  in the         research             unit          --     are      still
often        diverted          to work            on other           projects,                  such as ad hoc
information             requests            from        commissioners.

The Commission                 has no immediate                         plans       for         adopting           a
comprehensive,                 long-range               planning              process.               However,                  the    staff
director         is currently                  pilot           testing          a project                planning               and
tracking         system         for        managing             individual                staff          projects.                   She also
plans        to have the              new research                 director               develop           a research
agenda.          We believe                that        long-range               planning,                including
development             and Commission                    approval              of a research                   agenda,               would
help       the Commission                  identify             future          resource             needs and research

opportunities                and assist             Congress           in   its         oversight          of the

Unclear       Lines          of Authority

During       the      life      of the Commission,                      both       commissioners               and staff
sometimes            ignored          the     established              chain       of command and lines                    of
authority.             During          its     early        history,           the       Commission          operated        as
a loosely-organized                     task        force      to meet            its     mandated          deadlines,
and commissioners                     worked        side     by side           with       staff      on projects,
including            the     effort          to draft        guidelines.                  Although          this    may
have been an expedient                         way to operate                  early          on,   the     informality
that      developed           allowed          both        individual             commissioners              and staff           to
bypass       normal          supervisory              channels.

This      mode of operating                    continued            in some functional                      areas     of the
Commission,            such as research,                     even       after           the    guidelines          were
issued,       although            the Commission's                     focus       was shifting              and the       size
of     the   staff         had increased.                   In our discussions                      with     former       and
current       Commission               officials,            we identified                    a number of problems
that      have occurred                relating            to blurred             lines        of authority           and a
weak chain            of command.               Some staff              received              direction        from more
than      one source,             such as the               staff       director,              commissioners,
and/or       a staff          manager.              For     example,           staff          in the       research       unit
sometimes          worked         on projects               without         the         knowledge          or the
approval        of their              immediate            supervisors.                  Supervisors           indicated

that       these      informal          arrangements            impaired          their       ability          to
execute        plans        and manage staff.                   We believe             this      mode of
operating           has contributed                to factionalism               within          the
organization               and to difficulties                  in establishing                  a cohesive
research           unit.

A management               consultant         who analyzed             the Commission's
organization               and management            between          July      1988 and February                    1989
identified            similar          problems.         He believes             the Commission                 needs           to
strengthen            the    staff       director        and chairman                 positions          to act          as
buffers        between          staff     and commissioners                    to minimize             these
problems           and improve           the Commission's                operations.               We agree              with
his       conclusions           that     the Commission               needs      to maintain              a clear
chain       of command and effective                      lines        of authority               and that           a
central        point        of communication              or buffer             is needed between                    the
commissioners               and staff.

The Commission's                 recently          appointed          staff      director          has
acknowledged               some difficulties              with        lines      of authority              and is
attempting            to establish            clearer       staff        direction.               Previous           staff
directors           were also           concerned        about        the      confused          lines     of
authority           and made attempts                to improve               them.       In fact,         after          the
initial        guidelines              were   issued,       the       commissioners               acknowledged
the       need to consistently                 operate          through         more structured                 lines           of
authority           and a conventional                  chain       of command, and agreed                          to go
through        the Chairman,              or through            the    staff          director          in the

Chairman's             absence.          However,           individual            commissioners
disregarded             the     agreement.

Involvement             by Individual
Commissioners                in Research

The act         lays     out     a broad           set     of duties           and powers            for     the
commissioners.                  While        the    act     does not           limit     the     involvement               of
Commission             members in the work                   of     the Commission,                 the      extensive
involvement             of     individual           commissioners               in what would                normally           be
staff      activities            nonetheless               contributes            to the        organizational
disarray         we found          at the Commission.

Most      troublesome             is the direct              control           by individual
commissioners                over major            research         projects.            At the            present
time,      two commissioners                   are personally                  and directly                leading
research         projects        --a     comprehensive               examination            of alternatives                     to
imprisonment             and an indepth                   study     of   federal         plea        negotiating
practices.              A third         commissioner               undertook           a major        project         to
develop         a set        of proposed            guidelines           for      organizations                committing
federal         crimes.

We do not         question             the    need for            research        on these           issues,         and
have      not    assessed          the quality              of the       research          itself.             However,

we note         that      commissioner-led                  projects           were     initiated             in the

absence        of an overall                   research                strategy         agreed           upon by the
Commission             as a whole.                   Such a strategy                   might         address,             among
other       concerns,               the question                  of      an appropriate                 division            of labor
between        the         staff      and the Commission                           on research.

Without        an overall                  plan,      commissioner-led                       projects           can create
conflicts            with          ongoing         staff          research.            For        example,           the
commissioner                responsible               for         the      plea     study         told        us that         the
research            unit      staff         is beginning                   a parallel             study,        but
acknowledged                that       she is not                 fully       aware         whether           the    staff       study
will      overlap           or conflict               with         the      study       she is           leading.             Neither
she nor        the         staff      can predict                  at      this     point         whether           the      results
of the       two projects                   will      be in conflict.

The commissioner-conducted                                  project           on organizational                       sanctions
guidelines             raised         a further               concern,             an absence             of accountability
in commissioner-led                         projects.                  The Commission                allowed           this
project        to proceed                  without          specifying              deadlines             or resource
limits.             According              to Commission                   records,          about        $155,000            was
spent       in fiscal               year      1988 on contracts                       for     research              related         to
this      effort.             While         we did          not        determine            the    value        received            for
these       expenditures,                   the draft              guidelines               were not           accepted          by the
Commission.                 The Chairman                   told        us that        because            of    the experience,
he now requests                     detailed          plans            from       commissioners                leading

Commissioner                 involvement               in research,               especially                as direct
managers        of research                   projects,            raises         a further               concern.                This
approach        creates                  the potential             for      the        research           to reflect                  the
perspectives                and interests                    of   the     commissioner                  conducting                the
project.             Charges              of result-driven                  research             and promotion                    of
individual            commissioner's                    views        through            research            have been made.
Some current                and former               Commission             officials              expressed                similar
concerns.             A former               commissioner                acknowledged                  to us that                he
pressed        his         own agenda               in the project                he ran.               In the end,                   the
Commission            did          not      accept      the       results         of this              effort;            however,          we
note    that         the      introduction                   of a research                agenda driven                     by the
Commission            as a whole               might          have avoided                this         excursion

Vacancies            and Turnover                in
Key Positions

Vacancies            and turnover                have affected                   two critical                    staff
positions--           staff          director           and research                   director.                 In 4 years              the
Commission            has had four                   staff        directors             or executive                 directors
and one interim                     staff      director.                According              to former                 staff
directors,            it      was difficult                   to manage in an environment                                    where
they   could          not maintain                   authority            over         the     staff        because              of
commissioner                involvement.                 We believe               it         is critical             that         the
role   of the              staff         director        be strengthened                       so that            this

individual             serves          as a conduit                 for     communications                  between                the
commissioners                  and the           staff.

The research              director's                position              has been vacant                  for         over        a year
and a half.               Current           and former               Commission                officials               told        us that
the     delay         in filling            the       position             has been caused,                      in part,            by
the     lack         of consensus                among the           commissioners                  regarding
candidates.               Some of the                 officials             also        said      that      part          of the
problem         has been finding                      qualified             candidates              who would                 be
willing         to take              the position,              given            perceptions             that          the working
environment              is complicated                    by commissioner                     involvement                in
research             and other          matters.

Given        the      importance            of research                   to the Commission's                          efforts,            we
believe         it     is critical                to have a person                      in this          position              to        lead
the     development                  of a research              agenda            and direct             and coordinate
the     Commission's                  research            efforts          --     particularly              its         efforts            to
monitor         and evaluate                the       guidelines.                     The Commission                   initiated                a
formal         search          for     a research             director                in December           1989 and plans
to    fill      the     position            by March            1990.

Finally,             we should          note        that       there            are    currently           three          vacancies
on the Commission                      itself.             Of the          three        vacant       positions,                    one has
been vacant              for         over   2 years            and the            other        two since               September
and November              1989,         respectively.                      The act         provided              for      a
Commission             composed of seven                       full-time               voting       members              (one of

whom is         the     chairman).           We are          especially           concerned           that    these
vacancies          may create         problems           in future             votes.        Because         the
statute         calls      for     a minimum of              four      votes      to promulgate              or amend
guidelines,             a unanimous          vote       would        currently          be required           to meet
this       requirement.


Finally,         Mr.     Chairman,          we made a limited                    review      of the
Commission's             internal         controls.             This       disclosed         weaknesses             in
several         major      areas     of the Commission's                       administrative
operations             including      its         internal          controls       over      travel,         time        and
attendance,             and administrative                   policies.            We found         that

--     Travel      sometimes         occurs         without          written       authorization              and
       travel      vouchers         are     not     always          completed          properly.

--     Time and attendance                  reports          are     not      always      certified          for
       accuracy,         standard         leave       application              forms      are    not      always
       prepared         or completed          properly,              and records           for     compensatory
       time     and overtime          are not           always         kept      up to date.


To address           the Commission's                       management            weaknesses,          we recommend
that      Congress:

--     explore       directly            with         the    commissioners              ways to strengthen                     the
       role      of the       staff         director.                One way is         to amend the
       Sentencing            Reform         Act       to shift         the Commission's                  control         and
       authority            over      the     staff         director        to the Chairman.                     This        could
       be accomplished                 by giving             the Chairman,              rather       than        the           .
       Commission,            responsibility                   for     appointing            the    staff        director
       and fixing            the      staff       director's            duties.

--     step      up congressional                     oversight         over        the Commission's
       monitoring            and evaluation                  activities,             with     particular
       attention            to the       need for            a set      of milestones               to pace actions
       needed       to assure            that         the Commission's                statutorily            required
       report       will      be accurate,                  complete,            and timely.

--     prohibit        commissioner-led                      research            projects        which      are not
       consistent            with      an overall              research           agenda      adopted        by the
       full      Commission.

We also           recommend that                  the Commission                 establish         a long-range
plan          or strategy           to guide           it    through        the      next     several        years.
Such a plan                should      serve          as a basis           for      allocating           staff         and

other     commission     resources   in accordance     with     priorities      set    by
the Commission         as a whole.

This    concludes      my prepared   statement.      We would      be pleased     to
respond     to questions.