DC Advisory Commission on Sentencing
Preliminary Recommendations
March 28, 2000

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In 1998, the Council of the District of Columbia created the Advisory Commission on Sentencing (“Commission”) to review and analyze sentencing data, and to make recommendations regarding criminal sentencing reforms Congress mandated by the National Capital Revitalization and Self-Government Improvement Act of 1997, approved August 5, 1997 (P.L. 105-33; 111 Stat. 470) (“Revitalization Act”). The Commission will submit its second report to the Council on April 5, 2000. The voting members of the Commission are:

The Hon. Frederick Weisberg, Chair
The Hon. Harold Cushenberry
The Hon. Mary Gooden Terrell
The Hon. Harold Brazil
J. Ramsey Johnson, Esq.
Robert L. Wilkins, Esq.
Robert R. Rigsby, Esq.
J. William Erhardt, Esq.
Patrick Hyde, Esq.
Earl Silbert, Esq.
Charles F. Welldord, Ph.D.
Audrey Rowe
Linda Harllee

Preliminary recommendations, Tuesday, March 28, 2000.

I. The Council directed the Commission to make “a recommendation as to whether determinate sentencing should be extended to all felonies, or to additional criminal offenses under District of Columbia law beyond those specified in section 11212(h) of the Revitalization Act.”

Proposed Findings: The Revitalization Act abolished parole for offenders convicted of subsection (h) offenses. The Council does not have the authority to restore parole for these offenders, but it could retain parole for non-subsection (h) offenders. If parole is abolished for some offenders and retained for others, the resulting “dual” sentencing structure will be needlessly complex, deprives criminal defendants of readily understandable information about potential penalties for their criminal conduct, frustrates the public’s ability to ascertain the true meaning of a criminal sentence, potentially shifts power to prosecutors in the plea bargaining process, and substantially increases the complexity of calculation of release dates.

Proposed Recommendation 1: That the Council establish a “unitary” sentencing system by abolishing parole for all offenders.

Proposed Recommendation 2: That the Council authorize the Commission to provide training for judges and other parties regarding the switch from indeterminate to determinate sentencing, including information on historical practice. No additional legislative action is required.

Proposed Recommendation 3: That the Council authorize the Commission to monitor sentencing practices in the current indeterminate and the new determinate sentencing systems. The Commission proposes to work with the Criminal Division of the Superior Court of the District of Columbia, and all other repositories of relevant information, to collect data necessary to track sentencing practices. No additional legislative action is required.

II. With regard to supervised release, the Council directed the Commission to submit a “recommendation as to appropriate limits and  conditions on terms of supervised release, including whether there should be a mechanism for changing the length of a term of supervised release after its imposition, and any considerations that should apply with respect to the ratio between a prison term of sentence and a supervised release term.”

Proposed Findings: The Revitalization Act requires a judge to impose “an adequate period of supervision” to follow an offender’s release from imprisonment. The Act neither defines the term “adequate” nor expresses the purpose of supervised release. Data made available to the Commission indicate that offenders are most likely to commit a new criminal offense within the first 3 to 5 years after release from prison.

Proposed Recommendation 4: That the Council use the principle that supervision efforts should focus on an offender’s successful re-entry into the community, and on an offender’s transition to a productive, crime-free life. Specific legislative recommendations are discussed below.

Proposed Findings: The Revitalization Act establishes the Court Services and Offender Supervision Agency (“CSOSA”), the agency responsible for the supervising, through qualified supervision officers, District offenders on probation, parole and supervised release. CSOSA shall supervise any offender who is released from imprisonment for any term of supervised release imposed by the Superior Court of the District of Columbia. Offenders on supervised release shall be subject to the authority of the U.S. Parole Commission (“USPC”) until the completion of the term of supervised release. The USPC shall have and exercise the same authority as is vested in the United States district courts by paragraphs (d) through (i) of section 3583 of title 18, United States Code, with 2 exceptions. By referencing 18 U.S.C. § 3583, Congress has  given the USPC the authority to:

Set conditions of supervised release, 18 U.S.C. § 3583(d)
Terminate a term of supervised release any time after the expiration of 1 year of supervised release, 18 U.S.C. § 3583 (e)(1)
Submit a motion to the Superior Court of the District of Columbia for extension of supervised release, within the authorized limits otherwise in effect, 18 U.S.C. § 3583 (e)(2)
Revoke a term of supervised release, impose a penalty of imprisonment, and impose a subsequent period of supervised release, 18 U.S.C. § 3583(e)(3), (h)

Proposed Recommendation 5: That the Council take no action on these items because Congress granted to the U.S. Parole Commission the authority to set conditions of supervised release, to terminate supervised release, to seek an extension of supervised release, and to revoke supervised release.

Proposed Findings: The Revitalization Act does not indicate whether a term of supervised release runs concurrently or consecutively to a term of probation, parole, or supervised release to which an offender is subject or becomes subject during a term of supervised release. Nor does the Revitalization Act indicate the date on which a term of supervised release begins or whether a term of supervised release runs while a person is incarcerated following his conviction of another offense.

Proposed Recommendation 6: That the Council incorporate the content of 18 U.S.C. § 3624(e), which states:

The term of supervised release commences on the day the person is released from imprisonment, and runs concurrently with any federal, state, or local term of probation or supervised release, or parole for another offense, to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a federal, state, or local crime unless the period of imprisonment is less than 30 days.

Proposed Findings: In the federal system, a sentence of imprisonment is separate and apart from a term of supervised release following an inmate’s release from prison. The actual term of imprisonment imposed at sentencing plus the authorized term of supervised release for a particular offense may exceed the authorized maximum term of imprisonment (statutory maximum sentence). The Council need not adopt the federal model. The Commission, after considering 3 options, recommends that the length of time an offender serves in prison, whether for the initial prison sentence or upon revocation of supervised release, shall not exceed the statutory maximum sentence for the offense of which the defendant is convicted.

Proposed Recommendation 7: That the Council enact legislation providing that the combined total of the term of imprisonment imposed at sentencing, plus the authorized term of imprisonment imposable upon revocation of supervised release, may not exceed the statutory maximum sentence for the offense of which the defendant was convicted.

Proposed Findings: The Revitalization Act does not determine the length of the terms of supervised release. Thus, the Council is free to determine the authorized maximum terms of supervised release that the court may impose at time of sentencing. After considering various options, the majority favored fixed terms of supervised release, with longer terms for more serious offenses.

Proposed Recommendation 8: That the Council adopt the following provisions to set supervised release terms:

a. if the court imposes a term of imprisonment of more than 1 year,

• the court shall impose a term of supervised release of 5 years in the case of an offense for which the statutory maximum sentence is 25 years or more, and
• the court shall impose a term of supervised release of 3 years in the case of an offense for which the statutory maximum sentence is more than 1 year but less than 25 years.

b. if the court imposes a term of imprisonment of 1 year or less, the court may, at its discretion, impose a term of supervised release of:

• not more than 5 years in the case of an offense for which the statutory maximum sentence is 25 years or more, and
• not more than 3 years in the case of an offense for which the statutory maximum sentence is more than 1 year but less than 25 years.

Proposed Findings: The Commission recognizes that each offender has particular needs. While a short term of supervised release is sufficient time within which most offenders can complete programs designed to assist their transition to the community (to complete substance abuse treatment or to earn a G.E.D., for example), the risk of  recidivism is greater for some offenders. Certain sex offenders, for example, pose a greater risk to the community, given the significant likelihood of committing another sex offense.

Proposed Recommendation 9: That the Council consider adoption of longer terms of supervised release for offenders convicted of sex offenses for which registration is required pursuant to the Sex Offender Registration Act of 1999. Supervised release might be imposed for a term not to exceed the maximum period for which a convicted sex offender is required to register under the Sex Offender Registration Act of 1999, that is, life or 10 years.

Proposed Findings: The Revitalization Act authorizes the U.S. Parole Commission to revoke a term of supervised release and may require the defendant to serve time in prison without credit for time previously served on supervised release (“street time”). Under federal law, a defendant whose supervised release term is revoked may be required to serve a specified period depending on the “class” of offense. If an offense is punishable by life imprisonment, it is a Class A felony under federal law, and the maximum term of imprisonment imposable upon revocation of supervised release is 5 years. If an offense is punishable by a term of imprisonment of 25 years or more, it is a Class B felony under federal law, and the maximum term of imprisonment imposable upon revocation of supervised release is 3 years. If an offense is punishable by a term of imprisonment of at least 5 but less than 25 years, it is a Class C or D felony under federal law and the maximum term of imprisonment imposable upon revocation of supervised release is 2 years. If an offense is punishable by a term of imprisonment of more than one but less than 5 years, it is a Class E felony under federal law and the maximum term of imprisonment imposable upon revocation of supervised release is 1 year. Criminal offenses in the District of Columbia are not classified as federal offenses are in federal law. However, the maximum authorized revocation penalties set forth in 18 U.S.C. §3583(e)(3) appear to be binding on the District of Columbia under the classification system using statutory maximum sentences as set forth in 18 U.S.C. § 3559. Section 11233(c)(2) of the Revitalization Act states that “[T]he United States Parole Commission shall have and exercise the same authority as is vested in the United States district courts by paragraphs (d) through (i) of section 3583 of title 18, United States Code,” with two exceptions. The Commission recommends that the Council  enact its own legislation expressly setting forth the maximum terms of imprisonment imposable upon revocation of supervised release consistent with 18 U.S.C. §§ 3583(e)(3) and -3559.

Proposed Recommendation 10: That the Council adopt a provision that makes revocation penalties consistent with 18 U.S.C. §3583(e)(3) for District of Columbia felony offenses, according to the length of authorized maximum terms of imprisonment, as follows:

For purposes of revocation of supervised release, a defendant whose term is revoked may be imprisoned for a period not more than:

1. 5 years, if the maximum term of imprisonment authorized for the offense of which the defendant was convicted is life imprisonment, including life offenses currently in the D.C. Code for which the Commission recommends conversion to a term of years (see Recommendations 13 through 17 below),
2. 3 years, if the maximum term of imprisonment authorized for the offense of which the defendant was convicted is more than 25 years,
3. 2 years, if the maximum term of imprisonment authorized for the offense of which the defendant was convicted is less than 25 years but 5 or more years, or
4. 1 year, if the maximum term of imprisonment authorized for the offense of which the defendant was convicted is less than 5 years.

III. Regarding the impact of the Commission’s recommendations on offender populations, the Council directed the Commission to provide a “projection of the impact, if any, on the size of the District’s correctional and supervised offender populations of the implementation of each measure proposed by the Commission.”

Proposed Findings: The Commission does not expect its recommendations to impact the size of the population of incarcerated and supervised offenders. The Commission, in conjunction with the Urban Institute, recently conducted quality control checks on its database containing the historical time served by felons sentenced from 1990 to 1998 in the District of Columbia. This substantial undertaking should make it possible to monitor changes in sentencing and release practices, and provide computer models of the size of offender populations in the future. Historical information on time served also provides a baseline of past practice if, at a future date, the District of Columbia elects to move towards a system of structured sentencing.

Proposed Recommendation 11: That the Council authorize the Commission continue to develop a computer simulation model to assess the impact of determinate sentencing after August 5, 2000 on the District’s offender population. The Commission expects to work closely with the Federal Bureau of Prisons and the D.C. Department of Corrections regarding technical specifications of the simulation model. No legislative action is required.

Proposed Recommendation 12: That the Council make further efforts to integrate sources of data across criminal justice agencies, with an eye towards developing a single, convenient computerized source of sentencing-related information.

IV. Regarding life sentences, the Council directed the Commission to submit a “recommendation regarding the appropriate length of a life sentences for offenses under the determinate sentencing system.”

Proposed Findings: Nearly 1 in 10 felony convictions in the District of Columbia involves an offense for which the maximum statutory penalty is life imprisonment. Under current law, a “life” sentence means that an inmate will serve his life in prison if the D.C. Board of Parole (or the U.S. Parole Commission) denies parole. If granted parole, the person will remain subject to parole supervision for the remainder of his life. Under the new determinate no-parole system, without further definition, any sentence of life in prison means a sentence of “life without release.” Based on available data, it is clear that many offenders sentenced to life eventually are released from prison. In other no-parole jurisdictions, a life sentence generally means either   “natural life,” or a maximum term of years.

Proposed Recommendation 13: That the Council retain a maximum sentence of life without release for first degree murder and any other offense  currently carrying a maximum penalty of life without parole. 

Proposed Recommendation 14: That the Council retain the requirement that an aggravating factor must be found present, pursuant to D.C. Code §§22-2404.1, 4120, in order for the court to impose a sentence of life without release.

Proposed Recommendation 15: That the Council adopt a provision that establishes 60 years imprisonment as the maximum sentence for first degree murder, in cases that do not meet the requirements for a sentence of life without release.

Proposed Recommendation 16: That the Council adopt a provision that establishes 40 years imprisonment as the maximum sentence for second degree murder.

Proposed Recommendation 17: That the Council adopt provisions that establish 30 years imprisonment as the maximum sentence for all other offenses currently carrying a maximum penalty of life imprisonment.

V. Regarding intermediate sanctions, the Council directed the Commission to provide an “assessment of intermediate sanctions currently available in the District’s criminal justice system, and a “recommendation for intermediate sanctions that should be made available in the District of Columbia’s criminal justice system, including proposals for alternatives to incarceration for suitable offenders, the estimated cost of such programs, and recommendations for rules or principles to guide a judge’s imposition of intermediate sanctions as part of a criminal sentence.”

Proposed Findings: The sentencing system should encourage an array of programs and sanctions including compliance programs accompanied by drug treatment, economic sanctions, intermittent confinement, and total confinement, as appropriate. A continuum of sanctions should be available to provide the greatest range of response to individual offenders and offending. The District of Columbia has established an effective Drug Court, which combines treatment with graduated sanctions for violations. However, there have been relatively few resources for additional intermediate sanctions programs, programs that operate in the community and combine treatment with supervision and sanctions. Implementation of the Revitalization Act is channeling substantial additional resources to the Court Services and Offender Supervision Agency (CSOSA), which assumes responsibility for probation, parole and supervised release in the District of Columbia. The CSOSA incorporates intermediate sanctions into its supervision activities with respect to probationers, parolees, and, eventually, to offenders on supervised release. However, obstacles to full utilization of intermediate sanctions remain. Presently judges are unable to impose a direct sentence to short periods of confinement in a secure facility, such as a local residential facility, as a condition of probation to be followed by other less restrictive sanctions. Judges cannot impose work release conditions in felony cases, although they may make non-binding recommendations to the Department of Corrections.

Proposed Recommendation 18: That the Council adopt an amendment to D.C. Code §16-710 to read as follows:

(d) As a condition of probation the court may order that the defendant remain in custody during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation.

VI. Youth Rehabilitation Act (YRA)

Proposed Findings: The Revitalization Act impacts the YRA in three ways. First, the philosophy behind YRA sentencing is inconsistent with the determinate, no-parole system the Revitalization Act mandates. Second, the terms of the Revitalization Act abolishes parole for at least one group of young adult offenders. Third, because the Revitalization Act directs the Federal Bureau of Prisons to house the District of Columbia’s felony offenders, including those sentenced under the YRA, young offenders are not segregated from general adult populations. Despite these mandated changes, the Commission has determined that parts of the YRA can be retained for all youth.

Proposed Recommendation 19: That the Council retain set aside provisions for all eligible young offenders tied to the successful completion of supervised release.

V. Regarding the issue of consecutive and concurrent sentencing, the Commission is required to provide: “a recommendation as to whether multiple sentences should run concurrently or consecutively, and what guidance, if any, should be provided regarding imposition of consecutive sentences.”

Proposed Finding: The Commission found no reason to suggest that the court’s option to impose concurrent or consecutive sentences would be affected by the conversion from an indeterminate sentencing system to a determinate sentencing system.

Proposed Recommendation 20: That the Council take no action on this issue.