ADEQUACY OF CRIMINAL LAW

AND PROCEDURE (PHYSICAL)

A “LEGAL FOUNDATIONS” STUDY

Report 8 of 12

Report to the 

President’s Commission 

on Critical Infrastructure Protection

1997

This report was prepared for the President’s Commission on Critical Infrastructure Protection, and

informed its deliberations and recommendations. This report represents the opinions and

conclusions solely of its developers.
ii

Contents

Page

Acknowledgments............................................................................................ iii

Preface .............................................................................................................. iv

Part One: Introduction................................................................................... 1

Research Issues........................................................................................... 1

Research Findings....................................................................................... 1

Background................................................................................................. 3

Part Two: Possible Approaches to Enhancing Deterrence ......................... 7

Part Three: Conclusions ................................................................................ 15

Appendices

Appendix A: Listing of Primary Legal Authorities.................................... A-1

Appendix B: The United States Sentencing Commission.......................... B-1
iii

Acknowledgments

The Legal Foundations series of reports of the President’s Commission on Critical Infrastructure

Protection (PCCIP) resulted from the concerted efforts and hard work of several individuals. The

Commission gratefully acknowledges Commissioner Stevan D. Mitchell and Assistant General

Counsel Elizabeth A. Banker for their leadership and important contributions in developing the

Legal Foundations series of reports. Their research, writing and analytical contributions were

essential to the success of the effort.

The Commission also acknowledges Lee M. Zeichner, Esq. of LegalNet Works Incorporated and

his staff, for conceptualizing and maintaining the legal issues database and for providing tireless

research support. Finally, the Commission acknowledges the contributions of Senior Consultant

Paul Byron Pattak for his deft editing of this compilation.
iv

Preface

Executive Order 13010 established the President’s Commission on Critical Infrastructure

Protection (PCCIP) and tasked it with assessing the vulnerabilities of, and threats to, eight named

critical infrastructures and developing a national strategy for protecting those infrastructures from

physical and cyber threats. The Executive Order also required that the PCCIP consider the legal

and policy issues raised by efforts to protect the critical infrastructures and propose statutory and

regulatory changes necessary to effect any subsequent PCCIP recommendations.

To respond to the legal challenges posed by efforts to protect critical infrastructures, the PCCIP

undertook a variety of activities to formulate options and to facilitate eventual implementation of

PCCIP recommendations by the Federal government and the private sector. The PCCIP

recognized that the process of infrastructure assurance would require cultural and legal change

over time. Thus, these activities were undertaken with the expectation that many would continue

past the life of the PCCIP itself.

The Legal Foundations series of reports attempts to identify and describe many of the legal

issues associated with the process of infrastructure assurance. The reports were used by the

PCCIP to inform its deliberations. The series consists of 12 reports:

1. Legal Foundations: Studies and Conclusions

2. The Federal Legal Landscape

3. The Regulatory Landscape

4. Legal Authorities Database

5. Infrastructure Protection Solutions Catalog

6. Major Federal Legislation

7. Adequacy of Criminal Law and Procedure (Cyber)

8. Adequacy of Criminal Law and Procedure (Physical)

9. Privacy and the Employer-Employee Relationship

10. Legal Impediments to Information Sharing

11. Federal Government Model Performance

12. Approaches to Cyber Intrusion Response

and two special studies:

• Information Sharing Models

• Private Intrusion Response

Legal Foundations: Studies and Conclusions is the overall summary report. It describes the

other reports, the methodologies used by the researchers to prepare them, and summarizes the
v

possible approaches and conclusions that were presented to the PCCIP for its consideration. The

series has been sequenced to allow interested readers to study in detail a specific area of interest.

However, to fully appreciate the scope of the topics studied and their potential interaction, a

review of the entire series is recommended.
Page 1

Part One

Introduction

This paper examines the adequacy of current criminal law to provide protection for the nation’s

critical infrastructures from physical attack. It also addresses the adequacy of criminal law to

deter or punish attacks on infrastructures, how it might be amended, revised, or supplemented to

close the gap.

Research Issues

This paper addresses the following research questions:

• Do existing laws governing criminal procedure unduly hinder investigations of

infrastructure threatening behavior?

• To the extent that they may unduly hinder such investigations, how should they be

reconsidered or modified?

Research Findings

Upon reviewing Federal, state and international legal authorities, the following observations were

noted:

• Critical infrastructures may prove attractive targets for a variety of attackers, whether

disgruntled employees, terrorists (foreign or domestic), or agents of nation-states.

Federal criminal law may not adequately differentiate in terms of punishment based on

the severity of threat or the identity of perpetrator.
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• There are no Federal criminal statutes specifically prohibiting attacks on “critical

infrastructures” or denials of “critical infrastructure services” per se. Constitutional

considerations (e.g., vagueness, overbreadth, ex post facto concerns) might even

preclude successful enforcement of such a broad statutory proscription.

• Nonetheless, Department of Justice experts have suggested that the vast majority of

physical acts that could damage critical infrastructures are anticipated by and covered

under general Federal criminal law, and that there are no significant legal deficiencies

that would hinder the pursuit of serious cases.

• Statutory penalties for these general Federal crimes that would be used to prosecute

physical attacks on critical infrastructures generally range from 10 to 20 years’

imprisonment.

• Infrastructure assurance is not currently being taken into account by judges when

handing down sentences for physical acts against infrastructures. The U.S. Sentencing

Guidelines encourage courts to make upward departures in sentences for crimes that

involve violence against persons, but not necessarily for disruption of critical

infrastructure services or extensive physical damage.

• Current legislation providing for Rewards-For-Information in terrorism cases could be

more actively and efficiently implemented by Federal agencies.

• Agency-specific regulations containing prohibitions on acts against critical

infrastructures (which do provide for minor criminal penalties) are seldom enforced by

the agencies themselves or by the Department of Justice for a number of reasons. More

comprehensive criminal statutes provide better avenues for improving protection of

critical infrastructures.

• International treaties are in place that address physical crimes. The United States is a

party to many of these treaties. The treaties, however, do not appear to take into

account or adequately address infrastructure assurance issues.

Assumptions

This paper uses certain assumptions in its analyses, and they are as follows:

• Critical infrastructures serve as potential targets of physical attacks; such attacks will

likely persist, if not increase, in the future.
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• Enhancements to the criminal law, including stiffer penalties for physical acts against

critical infrastructures will act as a deterrent to such acts, and thus contribute to

infrastructure assurance.

Background

Federal criminal statutes have been put in place over time largely in reaction to specific events.

Recent acts of domestic terrorism, abuse of firearms, and attacks on certain types of facilities

(e.g., trains) have resulted in a series of laws that enable prosecutors to charge defendants for

similar offenses should they recur. These newer laws, such as the Antiterrorism and Effective

Death Penalty Act of 1996, in addition to the more established criminal statutes provide a rich

menu of options for prosecutors faced with devastating acts of physical violence. However,

because of the piecemeal nature of these statutes, they do not appear to provide blanket

protection for critical infrastructures from physical attack. Neither the substantive criminal

prohibitions nor the sentencing guidelines have been put in place specifically with infrastructure

assurance objectives in mind.

Substantive Prohibitions on Physical Crimes Against

Infrastructures

Current Federal statutes which provide protection to infrastructures are difficult to categorize. As

a preliminary matter, Federal investigators must be establish that the “victim” (i.e. the critical

infrastructure) is involved in interstate commerce. This finding then allows the Federal

government to exercise jurisdiction over a crime that otherwise would fall to the states to

investigate and prosecute.1

 Once Federal jurisdiction is established, prosecutors have a range of

options to choose from in charging a physical crime against an infrastructure. 18 U.S.C. § 844 is

a statute of general applicability that may be used for crimes involving explosives targeted at

instrumentalities of interstate commerce. Weapons of mass destruction, which include nuclear,

chemical and biological agents, also have specific statutes addressed to their use in the U.S.

Code.2

 Specific critical infrastructures, such as pipelines, airports, maritime vessels, and electric

utilities have statutes that are aimed at protecting them from physical damage. However, to the

extent a more general provision is available it will generally be preferred to a specific statute

 

1

 State laws protecting critical infrastructures were not studied for the purposes of this issue paper. To the extent this

paper expresses a preference for Federal investigation and prosecution, it reflects not necessarily a deficiency in state

law, but a lack of uniformity which may ultimately adversely affect the deterrent value of prosecutions. (e.g., state

policies on the death penalty vary widely).

2 See 18 U.S.C. §§ 2332a & 2332c (1997).
Page 4

because of the higher penalties available. (See Appendix A for further discussion of Federal

statutes prohibiting physical crimes).

Sentencing for Physical Crimes Against Infrastructures

While there may be some holes in this statutory framework when it comes to a prosecutor

charging a defendant for a crime against an infrastructure, the overall scheme is fairly

comprehensive. One of the larger obstacles Federal law enforcement faces with respect to

enhancing deterrence is in the area of sentencing for violations. Penalties and sentencing are

controlled by two sources: Congressional statutes and the Sentencing Guidelines published by

the United States Sentencing Commission.

The United States Sentencing Commission is an independent agency in the judicial branch of

government. Its principal purpose is to establish sentencing policies and practices for the Federal

courts, including detailed guidelines prescribing the appropriate form and severity of punishment

for offenders convicted of Federal crimes. While the development, monitoring, and amendment

of the sentencing guidelines is the centerpiece of the agency’s work, the Commission provides

training, conducts research on sentencing-related issues, and serves as an information resource

for Congress, criminal justice practitioners, and the public.

In many cases, Congress will specifically set forth a punishment in the statute which contains the

substantive prohibition. In almost every criminal offense associated with critical infrastructure

protection, Congress identifies a range of punishment options – such as from two years to 20

years with or without a particular fine. Because courts are given a range of punishments, the U.S.

Sentencing Commission publishes Guidelines to assist Courts in delivering the most appropriate

sentence. In general, the Guidelines suggest stricter punishments where criminal acts result in

death, are committed with explosives, or are intended to cause harm. Amendments made to the

Guidelines this year set forth more stringent punishments for terrorist-related acts. These are

addressed further in the examples below.

Example - Terrorism and the U.S. Sentencing Guidelines

Use of U.S. Sentencing Guidelines to Supplement Legal Authorities:

U.S. Sentencing Guideline Enhancement

• Prior to passage of the Antiterrorism and Effective Death Penalty Act of 1996,

Federal court judges were not provided any guidance with regard to acts that

could be seen as “acts of terrorism.”

• Sentencing Guidelines associated with the Antiterrorism and Effective Death

Penalty Act of 1996 accounted for criminal acts such as the Oklahoma

bombing.
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• The U.S. Sentencing Commission amended the Guidelines in May 19973 to

increase the sentencing level for any offense intended to promote the “Federal

crime of terrorism.”

While there are some provisions in the current Sentencing Guidelines that would allow for

enhanced prison terms for certain acts against critical infrastructures, the Guidelines as written do

not take into account extensive physical damage to infrastructures or disruptions in services due

to physical attack on infrastructures. Amendment to the Guidelines to allow upward departures

for these types of harms may be appropriate in light of the recent changes to the Sentencing

Guidelines for computer crimes (as discussed in the companion paper to this effort on the

adequacy of criminal law and procedure (cyber)).

One specific weakness of the current sentencing regime was uncovered with respect to biological

substances. Under existing laws, crimes involving biological substances may result in unusually

low prison sentences. Congressional laws do adequately address crimes involving toxic

biological substances. In particular, legal authorities set forth penalties for a wide range of

activities—acquiring, developing, producing, stockpiling, etc.4

 Congress sets the prison term for

any of these, and other related activities at “life or any term of years.”5 However, while Federal

court judges may sentence an offender for life, there is no mandatory sentence in the statute. The

Sentencing Guidelines set forth the following criteria:

• Base offense is equivalent to “weapons possession” – less than two years;6

• Where the Court finds that there was no intent to commit harm, the Sentencing

Guidelines suggest only a minor increase in sentencing (e.g., six months);7

• Where the Court finds intention was to commit murder, the prison term can be raised

by 27 to 33 months;8

• Where the Court finds that the biological substance was used as a “weapon of mass

destruction,” then the Guidelines increase the sentence considerably.9

 

3

 Amendments to the Sentencing Guidelines (U.S.S.G.), United States Sentencing Commission, May 13, 1997 at 58

(Amendment 19).

4

 18 U.S.C. 175

5 Id. 6

 The base offense is equivalent to 12 points under U.S.S.G. 2K2.1.

7 See U.S.S.G. 2N2.1.

8 See U.S.S.G. 2A.1 series for particulars. 9 See U.S.S.G. 2M6.1. The Court may also find here that the act was terrorist-related and increase the term to life;

where death result, the court can find for the death penalty. See USSG3A1.4.
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Federal courts then have the discretion to apply the statute strictly or to find for an extremely low

prison sentence. Where such crimes involve critical infrastructures, an unusually low prison

sentence is—at least theoretically—possible based on relevant precedent.10 Sentencing would

depend, in large part, on the court’s sensitivity to critical infrastructure harm and related issues.

In other areas, the Sentencing Guidelines provide strict implementation options—such as where

the offender uses the substances in a terrorist-related act or as a weapon of mass destruction.

Given the extreme toxicity of biological substances, and the level of threat they pose to certain

infrastructures, Congress may wish to recommend (1) reducing the discretion now available to

judges through Congressionally mandated sentencing, or (2) raising the courts awareness of these

issues through sentencing enhancement with the existing Sentencing Guidelines framework.

Alternatives to Traditional Law Enforcement Efforts

While it is assumed that successful prosecution and severe sentences will deter many of the

possible criminal acts that could be targeted at infrastructures, recent cases (e.g. suicide bombers

targeting N.Y. subways) suggest that there is a segment of society that will remain undeterred by

even the most successful law enforcement efforts. For this reason, it may be important to

consider other means of detecting and defeating these acts before they become realities. Neither

of the alternatives suggested below should be taken as independent of law enforcement efforts,

but rather as supplements to current or enhanced law enforcement efforts.

The first area where there is potential for improvement is in the administration of the current

award program for information about terrorist activities. Through this Congressionally-mandated

program, tips that lead to the capture and arrest of terrorists are to receive monetary awards.

Such tips have played important roles in many recent law enforcement investigations such as the

New York subway case. However, the current administration of the system may not be adequate

to provide the necessary incentive to bring all who possess such crucial information forward.

Improvements in education and awareness, scope of coverage, and the clarity of guidelines for

receiving awards may contribute to the success of such a program.

In addition, preventive measures could be taken by many of the critical infrastructures to increase

the physical security of the truly critical elements of their infrastructures. While it may be

infeasible to make specific recommendations to each of the infrastructures as to the proper

security measures to have in place at identified sites, it could still be possible to recognize the

value of physical security as a deterrent and a deterrent that prevents damage rather than react to

it.

 

10 Recently, in a Minnesota case, an offender was convicted for manufacturing ricin. Ricin is one of the most toxic

substances discovered to date, and small amounts could taint a large supply of treated water. The Court was faced

with the options listed above and chose a middle course -- which increased the base offense by approximately 27 to

33 months (See U.S.S.G. 2K2.1.)
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Part Two

Possible Approaches To

Enhancing Deterrence

Enact “Critical Infrastructure” Crimes Legislation

Congress could re-examine existing legislation covering critical infrastructures and consider

revising and adding additional provisions to cover all of the critical infrastructures. Legislation

would then be packaged as a “Critical Infrastructure Protection” statute. Specific guidance could

also be provided to the Sentencing Commission on how to draft the guidelines for the new and

revised provisions in the package.

• Pro: New legislation would allow Congress and the Sentencing Commission to focus on

infrastructure assurance issues not previously addressed. A detailed study would allow an

infrastructure-by-infrastructure approach which is probably necessary to avoid the

Constitutional overbreadth issues that would plague a generic “damage to critical

infrastructures” statute. Packaging of provisions together would raise the level of

awareness of critical infrastructure issues. This approach may provide a useful model for

states to use in evaluating their criminal statutes.

• Con: Congress is traditionally reluctant to consider creation of any broad criminal

statutes where narrow statutes effectively address most of the problem. Congress is likely

to be very reluctant to try new and untested approach where the old approach produces

satisfactory results. Where there are holes, other less drastic means are available to “fill

the gaps,” such as sentencing enhancement. Congress may be reluctant to pursue new

legislation without an identified and urgent need (i.e. without a well-publicized event).
Page 8

Enhanced Sentencing Guidelines for Infrastructure-Related

Harm and Damage

Several Federal criminal laws protect critical infrastructures from physical attacks. These

authorities consist primarily of Federal statutes from Title 18 of the United States Code. There

are over 30 major criminal laws that may be invoked in response to physical attacks on critical

infrastructures—statutes that confer adequate investigative jurisdiction and authority in the vast

majority of instances. Thus, the legislative scheme is comprehensive and provides an adequate

“legal fortification” from physical attacks. However, there are several potential shortfalls relating

to the ability of this complicated patchwork of laws to deter crimes against critical

infrastructures.

Critical infrastructure deterrence may be undercut for several reasons. The first is that judges are

likely not yet aware of, nor have they been trained to identify, critical infrastructure issues. Also,

the Sentencing Guidelines support lighter sentencing for attacks against property, however

serious. More severe sentences are reserved for attacks against people and attacks using

traditional, violent means—such as explosives and firearms. In addition, the Sentencing

Guidelines may not adequately take into account the severity of consequential damages arising

from attacks on critical infrastructures, for example, damage resulting from the “downstream”

effects of a denial of service attack. As a consequence, the Sentencing Guidelines may not

adequately embody critical infrastructure assurance goals and interests, thus creating a possibility

of disproportionately light sentences for some forms of attack on critical infrastructure.

Either the Administration or Congress could instruct the U.S. Sentencing Commission to

enhance existing Sentencing Guidelines to account for harm to critical infrastructures. Using the

Guideline on terrorist acts as a model, a specific guideline for used in sentencing physical crimes

against critical infrastructures could be developed.11 In particular, a recommendation could be

offered to increase the range for prison sentencing for harm to critical infrastructure-related

property. (See U.S.S.G. 2B1.3.) Disruptions in services that harm individuals or have substantial

costs should be taken into account. (Sentencing Guidelines for computer crime may provide a

model.) It may also be appropriate to recommend that the U.S. Sentencing Commission address

infrastructure assurance objectives in its training program for Federal Court judges.

• Pro: A recommendation to enhance sentencing is an efficient legal method to protect

critical infrastructures from physical threats; currently, the Guidelines do not account for,

or in any way contemplate, damage to critical infrastructures.

• Con: Enhancing the Sentencing Guidelines will not lead to dramatically higher penalties

for crimes against critical infrastructures. Only substantial changes to the underlying

statutes, by Congress, will force dramatic changes from current sentencing practices.

 

11 Such a provision could read: “If the offense is a felony that involved, or was intended to affect a critical

infrastructure, as defined, then increase offense level by ______.”
Page 9

There are three forms of “attack” against critical infrastructures which may not adequately be

addressed by existing guidelines and which may require some degree of special attention. They

include attacks—

1. With biological weapons or chemical weapons where no deaths occur.

2. Where there is only property damage.

3. Where no explosives or firearms are used.

There are three ways to amend the Sentencing Guidelines. This first is that Congress may

instruct the Sentencing Commission to amend the Guidelines immediately to coincide with an

enacted statute. Second, the U.S. Sentencing Commission may amend the Guidelines in

accordance with a specific delegation of authority from Congress. Under both of these methods,

Congress explicitly empowers the Sentencing Commission to amend the Guidelines. The third

way is that any interested party may propose a Sentencing Guideline amendment.

The first two methods may result in Guideline amendments in a relatively short period of time.

The only way to evade the “normal amendment cycle” is via express authority delegated by

Congress. The third method—initiation by an interested party—requires at least one cycle (one

full year); U.S. Sentencing Commission history suggests that two to three years is more likely

required to amend a Guideline.

• Pro: These options complement Congressional statutes that penalize physical threats to

critical infrastructures, but do so within the parameters of existing law and sentencing

mechanisms. They accordingly should not require additional government structures or

significant expenditures of resources. By instructing the President and Congress to

delegate authority to the Sentencing Commission, infrastructure assurance goals will be

incorporated outside the “normal U.S. Sentencing Commission cycles,” which may last as

long as several years. Finally, sentencing enhancement achieves important

consciousness-raising goals, providing information on critical infrastructure protection to

a vital portion of the law enforcement and criminal justice network of professionals,

judges, legislators, probation officers, local law enforcement, and academicians.

• Con: Working through the U.S. Sentencing Commission, as opposed to changing or

developing new legislation, is not necessarily the most visible or comprehensive method

for filling gaps in existing law. Critical infrastructure issues are complex and do not

translate easily into U.S. Sentencing Commission Guideline Amendments. Real

deficiencies in jurisdictional authority, for example, can be corrected only through

specific criminal legislation.
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Include Within Infrastructure-Related Legislation a Finding

that Critical Infrastructures are “Instrumentalities of

Interstate Commerce”

In order to have investigative or prosecutorial jurisdiction over physical acts against critical

infrastructures, the affected infrastructure must have some relationship with “interstate

commerce.”12 Although not common, there are examples of purely intrastate infrastructure

facilities. Various rail lines, natural gas pipe networks, and state-run and operated subway

systems may be deemed “intrastate.” The recent attempted pipe-bomb attack in the New York

subway reveals a legal vulnerability; according to the Department of Justice, defense attorneys

could defeat application of important Federal laws because the subway system is not clearly an

“instrumentality in interstate commerce.” Congress could deem certain infrastructures to be

“instrumentalities of interstate commerce.” Such a finding will ensure that crimes associated

with critical infrastructures will be under Federal jurisdiction.

• Pro: Such a finding is necessary to ensure that all crimes associated with critical

infrastructures are handled in Federal court, and are addressed with Federal criminal

legislation. A Congressional finding is not overly dramatic or burdensome to Congress.

It can be easily included in any piece of infrastructure-related legislation. Application of

Federal criminal legislation to all critical infrastructure related crimes best protects these

infrastructures by providing uniformity, especially in sentencing.

• Con: A Congressional finding that critical infrastructures are all instrumentalities of

interstate commerce may be overly broad and may lead to unintended results. Such an

attempt to secure Federal jurisdiction in all criminal matter affecting critical

infrastructures may be premature without further study of state handling of such crimes

and may be seen by state lawmakers as a usurpation of power.

The comprehensiveness of existing criminal law to cover a full range of physical attacks on

critical infrastructure was examined as part of developing this paper. Deficiencies that might

pose undue limitations on the exercise of Federal jurisdiction in such instances were also looked

at. Two potential deficiencies were identified (discussed below) with respect to purely intrastate

attacks against critical infrastructures—even when such an attack may result in severe damage.

In these instances, in order legally to assume jurisdiction over an investigation or prosecution, the

Federal government must demonstrate on a case-by-case basis that the incident affects interstate

commerce. This may be a particularly difficult determination to make at the earliest stages of an

investigation, before the scope of an attack or its effects are well known.

 

12 Please refer to the Listing of Legal Authorities for examples (See Appendix A).
Page 11

Also, there are several hypothetical scenarios involving purely intrastate facilities that may

preclude Federal investigative and prosecutorial involvement.13

A Congressional Finding that all critical infrastructures (suitably defined) were “instrumentalities

of interstate commerce” may be an efficient way of ensuring that Federal jurisdiction exists to

respond to appropriate instances. Subsequent research, including a review of related cases and

discussions with legislative counsel about these issues, lead to the following conclusions

pertaining to issuance of a Congressional Finding:

• A Congressional Finding must be made part of a legislative enactment; a Congressional

Resolution or statement read into the Congressional Record would not be sufficient to

support a subsequent claim to Federal jurisdiction.14

• The standard used by Courts to test Congressional Findings is low: Courts demand only

a “reasonable” nexus between the facts offered (in the Congressional finding) and

interstate commerce.15 For threats to critical infrastructures, this standard would likely

be attainable.

• The Congressional Finding must be sufficiently specific to identify the critical

infrastructures.16

 

13 Possible examples of attacks against certain purely intrastate railroad and subway lines and natural gas pipe

networks fit the profile.

14 See, e.g., U.S. v. Lopez, 2 F.3d 1342 (5th Cir. 1993), affirmed 115 S.Ct. 1624, 514 U.S. 549, 131 L.Ed.2d 626

(Gun-Free School Zones Act prohibiting any individual from knowingly possessing firearm in school zone is invalid

as beyond power of Congress under commerce clause. Neither Act nor legislative history reflected any

congressional determination that possession denounced by Act was in any way related to interstate commerce or its

regulation, or that Congress was exercising its powers under commerce clause).

15 When Congress itself determines that particular conduct adversely affects interstate commerce, the courts defer to

Congress’ judgment so long as there is a rational basis for finding a chosen regulatory scheme necessary to the

protection of commerce. Rasmussen v. American Dairy Ass’n, 472 F.2d 517 (9th Cir. 1972), cert. denied, 93 S.Ct.

3014, 412 U.S. 950, 37 L.Ed.2d 1003. When reviewing Congress’ exercise of power under commerce clause, courts

apply a rational basis test under which court must defer to a congressional finding that a regulated activity affects

interstate commerce if there is any rational basis for such a finding. U.S. v. Wilson, 880 F.Supp. 621 (E.D. Wis.

1995), reversed 73 F.3d 675, rehearing and suggestion for rehearing en banc denied, cert. denied 117 S.Ct. 46, 136

L.Ed.2d 12, cert. denied 117 S.Ct. 47, 136 L.Ed.2d 12; Freedom of Access to Clinic Entrances Act (FACE),

providing criminal and civil penalties against persons using or threatening to use force to interfere with reproductive

health services, was validly enacted under Commerce Clause; congressional findings of nationwide violence against

abortion clinics showed a substantive impact on interstate commerce. U.S. v. McMillan, 946 F. Supp. 1254 (S.D.

Miss. 1995).

16 See U. S. v. Dawson, 467 F.2d 668 (8th Cir. 1972), cert. denied, 93 S.Ct. 1427, 410 U.S. 956, 35 L.Ed.2d 689.

Congressional failure to make formal findings of fact in connection with drafting of this section which among other

things makes it unlawful to receive, transport, sell, etc., explosive materials knowing or having reasonable cause to

believe that they were stolen did not render invalid underlying legislation despite claim of defendant that this section

is infirm because its enactment was not accompanied by congressional findings concerning manner in which misuse

of explosives affect interstate commerce, as there was a rational basis upon which Congress could properly have

determined that the misuse of explosive materials is one activity which as a class affects commerce; U. S. v. Perez,

426 F.2d 1073 (2nd Cir. 1970), cert. granted 91 S.Ct. 175, 400 U.S. 915, 27 L.Ed.2d 154, affirmed 91 S.Ct. 1357,

402 U.S. 146, 28 L.Ed.2d 686 (In view of rational congressional finding that even purely intrastate extortionate
Page 12

Mandatory Prison Sentences

Congress could establish new, mandatory prison sentencing for all crimes involving biological

substances; or in the alternative, recommend that the U.S. Sentencing Commission set forth

stricter sentencing guidelines for crimes involving biological substances and train Federal court

judges in effective implementation.

Biological substances are very serious agents which in small amounts can do serious damage.

Congressional statutes are in place to charge crimes involving such substances; however, judges

are currently given wide discretion in sentencing. Some past cases suggest that judges failed to

appreciate the seriousness of the crimes in handing down their sentences. Congress or the

Sentencing Commission could study and propose stricter penalties, with less discretion for

judges, for cases involving biological agents. In addition, training in such new types of crimes

should be given to judges to increase their sensitivity to the nature of the substances and their

potential criminal uses.

• Pro: This approach would compel awareness of judges to relatively new crimes such as

those involving biological agents. It would ensure strict sentencing in cases involving

biological substances and may increase deterrence.

• Con: Congress has addressed the issue in the statute and may be reluctant to reopen the

issue to consider sentencing. The Sentencing Commission may resist efforts to limit

judicial discretion any further—as may the judicial community.

Monetary Awards

The authors also reviewed legislation that offers reward monies for information leading to the

capture of terrorists.17 Under these legal authorities, Congress authorizes the Attorney General

and the Secretary of State to administer rewards and payment-for-information programs. These

laws appear to effectively supplement other Federal crimes legislation to protect critical

infrastructures.

Few Federal agencies that control critical infrastructures have programs to protect infrastructure

facilities—whether in the form of funds-for-information, rewards, or training and awareness.

One of the few programs designed and administered by a Federal agency is Bonneville Power

 

credit transactions affect interstate commerce, this section is a constitutional exercise of Federal power over

interstate commerce).

17 18 U.S.C. §§ 3071-3077.
Page 13

Administration’s Crime Witness Program.18 Formed by BPA in 1994, the Crime Witness

Program is a sophisticated blend of public relations,19 grass roots training,20 and cooperation with

other Federal agencies to reduce losses and protect facilities.21 BPA funds reward monies as a

percentage of vandalism-related savings.

Government agencies could review and promote participation in Congressional programs that

provide monetary awards for tips leading to the capture and arrest of terrorists (see 18 U.S.C. §§

3071-3077). Such programs may be one of the best ways to prevent crimes from successfully

occurring. In order for such programs to be truly effective, especially with regard to crimes

against critical infrastructures, they must be well-publicized and provide clear guidelines (as little

red-tape as possible) for obtaining the reward. There is evidence from recent investigations of

the promise such programs have for preventing criminal acts (e.g., the New York subway case).

The utility of such programs could be highlighted and expanded to include the critical

infrastructures. Their administration could be streamlined and visibility heightened to improve

participation.

• Pro: This approach is consistent with Congress’ intent in establishing the reward money

program. It focuses on preventing the crime (and subsequent damage). It supplements

law enforcement efforts and contributes to successful prosecution. It publicizes low

tolerance and proactive stance of the Federal government with regard to crimes directed

against critical infrastructures.

• Con: Such programs are expensive and difficult to administer. Expansion to critical

infrastructure issues may be resisted by agencies that administer the programs (State and

DOJ).

 

18 Bonneville Power Administration Journal, June 1997 at 2 (reprinted at Bonneville Power Administration Website,

www.bpa.gov/Corporate/ACS/jl/97jl/jl0697x.htm/.

19 BPA commissioned a professional video to advertise the program as a Public Service Announcement. Television

stations throughout areas that BPA maintains transmission lines broadcast the message at no charge; BPA produced

similar radio spots as well.

20 BPA additionally prints posters, pamphlets, and signs to advertise the Program at schools, community centers, and

on-site throughout the Northwest United States. Dissemination of materials is especially heavy in sparsely populated

areas. BPA has approximately 15,000 miles of transmission lines.

21 The Bureau of Reclamation and the Army Corps of Engineers recently agreed to coordinate efforts with BPA as

part of the Crime Witness Program. After calls come in advising of a potential crime, operators direct calls to the

agency that controls the relevant infrastructure facility. The Bureau of Reclamation provides funding directly to

BPA.
Page 14

Critical Infrastructure Owners and Operators Pursue

Increased Physical Security for Particularly Vital and

Vulnerable Elements of Their Infrastructures

This approach would allow the agencies, trade associations and owners and operators to work

together to determine the areas that need additional protection, best level of protection, and

appropriate means to supply it. Focusing on prevention may provide an element of deterrence for

small-time criminals without access to powerful weapons or sophisticated equipment.

• Pro: This approach focuses on preventing damage rather than reacting to criminal act. It

involves infrastructure owners and operators in protecting their infrastructures, and

supplements enhanced law enforcement responses (e.g., stiffer sentences).

• Con: Without a powerful mandate, infrastructure owners and operators may be reluctant

to sink additional funds into security. Increased security will not deter the most

sophisticated and determined criminals.
Page 15

Part Three

Conclusions

If the President and Congress so chose, they could encourage the Sentencing Commission to

amend the Sentencing Guidelines to adequately and proportionately address physical threats to

critical infrastructures. Specifically, they could ensure that—

• The U.S. Sentencing Commission ensure that the applicable guideline ranges for a

defendant convicted of a crime against a critical infrastructure are sufficient to deter such

crime, and provide an appropriate vehicle through which the sentencing court may

consider the full range of consequential damages, including but not limited to economic

damages, that may have been incurred by the victim and others as the result of the crime;

• The U.S. Sentencing Commission study and report to Congress on sentencing issues—

with emphasis on sentencing deficiencies for damage to critical infrastructure property

and attacks with biological and chemical weapons that do not result in any deaths and are

not currently covered as “terrorist” acts for guidelines purposes;

• The U.S. Sentencing Commission train Federal Court judges to identify and incorporate

critical infrastructure assurance goals into sentencing; and

• Sentencing Commissions and Councils within each state, and state legislatures, study

Amendments to the U.S. Sentencing Guidelines intended to further critical infrastructure

assurance, and to consider similar changes to their state sentencing guidelines or criminal

statutes.

Congress may find it prudent to consider the propriety of including in appropriate infrastructurerelated legislation a Congressional Finding that “critical infrastructures” are “instrumentalities of

interstate commerce.”

Such a finding may be necessary to ensure that all serious attacks on critical infrastructures can

be investigated by Federal law enforcement officials and prosecuted in Federal court. Rendering

a Congressional Finding under such circumstances would likely not prove burdensome or

inappropriate. It can be included in any piece of infrastructure-related legislation, and need not

be tied to “new” criminal legislation.
Page 16

Some issues militate against this approach however. There may be considerable delay before

passage of specific “critical infrastructure” legislation. Without a Congressional statute, there

can be no Congressional Finding. The Finding itself must be stated with adequate specificity as

to put a defendant on notice as to what might constitute a “critical infrastructure,” and the

adequacy of this definition may provide grounds for appeal of a conviction. Thus, Congress

should carefully consider whether a suitable definition can be drawn, and whether the benefits

might justify the effort.

The President and Congress could review and promote Federal government agencies’

participation in programs that provide monetary rewards for information leading to the capture

and arrest of vandals and terrorists. Congress could further encourage agencies to explore the

creation of such novel programs aimed at protecting critical infrastructure facilities from damage.

This position is wholly consistent with Congress’ intent in establishing rewards and payment for

information programs. Further, at the grass roots level, there seems to be movement in creating

these programs to meet individual agency and infrastructure needs. It should be noted however,

that these programs are likely expensive and difficult to administer. Expansion of programs,

other than the existing programs for the Department of Justice and the State Department, may be

too onerous for other agencies.
APPENDIX A

Listing of Primary Legal Authorities

Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

Explosives/incendiarydevices• 18 U.S.C. 844

All critical infrastructures.Not applied to crimesassociated with infrastructureelements not in “interstatecommerce.”

Criminal code legal authority toprosecute use, or threat of use ofexplosives. Involves,government and privateproperty.Used extensively by Departmentof Justice to prosecute use ofexplosives in criminal acts.

Must be in “interstathe provision will nNot all infrastructurinstrumentalities in (e.g., certain rail linetc.)Penalties vary based 844h - Damage to gwith explosives manprivate property theis a second offense, stricter.Where death resultssentence for any terdeath penalty.
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 18 U.S.C. 2332a All critical infrastructures.

Any U.S. Governmentproperty, or against any person(must have results in interstatecommerce).

Criminal code legal authority toprosecute for use of anybiological, chemical, orconventional explosives.Department of Justice appliesbroadly – use of any type ofexplosives.Part of 1996 Antiterrorism andEffective Death Penalty Act(1996 Terrorism Act).

Would not apply if infrastructure were Penalty is term of yeSentencing Guidelinsentence if:• against property • harm is caused t

2A1.1;

• where death resu

punished by dea

• 18 U.S.C. 2332c Attacks against all critical

infrastructures.

Criminal code legal authority toprosecute for use of anybiological, chemical, orconventional explosives.Department of Justice appliesbroadly – use of any type ofexplosives.(Note 18 U.S.C. 2333 andprovisions for civil penalties).Part of 1996 Antiterrorism andEffective Death Penalty Act(1996 Terrorism Act).

Would not apply if “intrastate.”No specific Sentencthis provision. Congsimilar to 2332a – tewhere act causes demay be invoked.
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 18 U.S.C. 831 All critical infrastructures. Criminal code - legal authority

to prosecute for use of anynuclear materials.

Use of nuclear mate• Congress lists ra

not more than 2caused) to life (wlife in manifest 

• Where death is c

life, and the deaSee U.S.S.G. Amfor the death pen

If the intent is to “aigovernment” or to cthen the Sentencing higher term of years 
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 18 U.S.C. 175-

178

Biological WeaponsAnti-Terrorism Act of1989

All critical infrastructures. Criminal code legal authority to

prosecute for use of anybiological weapon.Recently, in a Minnesota case, aFederal judge sentencedsomeone who was producingricin to “minimum sentence.”The Judge ultimately based thedecision on U.S. SentencingGuidelines for unlawfulweapons possession (U.S.S.G.2K.2.1) rather than the moreserious “weapons of massdestruction” guideline. TheCourt could have set forth aneven lighter sentence based onpossession of a biologicalweapon.

No “interstate commHowever, there are Sentencing Guidelinand Congress indicaother term.”The absence of a spGuideline might preapplying this provisin the absence of anthat three possible UGuideline applicatioEnhancing the Sentemight be appropriatstockpiling ofricin, likely lead to a 0 to on available Sentenor 2K2.1:• 2N2.1 (use of bi• 2A2.1 (attempte• 2K2.1 (weapons • 2M6.1 -(weapon 
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 18 U.S.C. 2332b All critical infrastructures. Aimed at prosecuting terrorism

“beyond U.S. boundaries.”Provision transcends U.S.boundaries.Mini-RICO – Additional teethfor conspiracies – more than oneperson.

Penalties are severe death. May be charto life, or the Death Terrorism Act and UGuideline 3A1.4.Long-arm jurisdicticatch criminal “whe

• 18 U.S.C. 1363 All critical infrastructures. Buildings of property within

maritime or territorialjurisdiction.

Generic: destruction property, whether gSentencing Guidelinterm based on:• property damage• weapons used (g• planning involvSee differences betwand U.S.S.G. 2K1.4this provision used more than terrorist.Statute limits prison 
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 18 U.S.C. 1361 All critical infrastructures. Government property or

contracts

This provision applDOJ considers this most generic provisFederal property.Penalties of zero to property damage anStatute limits maximyears.
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 18 U.S.C. 1992 Transportation facilities -

railroads and railroadfacilities.

“Wrecking trains” statute.If act is to intrastate facility,DOJ applies 18 U.S.C. 844I –five to 15 years for first offenseis prison range.

Does not cover masinterstate commercesolely intrastate, staMaximum prison teSentencing Guidelinterms where act inv• homicide (U.S.S• terrorism (U.S.SWhere train is carryradioactive waste or term increases from Under this scenarioGuidelines apply to 
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 18 U.S.C. 32 Airport facilities. Destruction of aircraft facilities. For destroying or an 

an aircraft facility. facilities. Congress maximum of 20 yeaWhere the act involhomicide, or terroriCommission instrucsentences accordingDoes not apply to “i

• 18 U.S.C. 37 International airport facilities. Any act of violence at

international airport facilities.

Applies only to airpinternational airportDoes not cover aircrabove).Applies to acts outsis subsequently founCongress sets limit 

• 18 U.S.C. 33 Motor vehicles or vehicle

facilities.

Destruction of motor vehicles ormotor vehicle facilities.

Congress sets limit DOJ also uses 844I application of 844I act to a railroad, dis
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 18 U.S.C. 2271-

2281

Vessels; mixed platforms. Vessels. Wide range of Cong

covering crimes regComprehensive. Spcommitting act.U.S. Sentencing Guadequately.
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

49 U.S.C. 60123 and49 USCA 60114(c )

Pipelines; pipeline facilities. Acts of destruction to pipelines. Congress sets forth 

depending on act:• damage or destr

years

• destroy sign or n

more than one y

• failure of owner

adequately - not 49 USCA 60114

Also sets forth penafollowing marking rNOTE: Application Guidelines to these Act lacks any real “U.S. Sentencing Guto property suggest penalties—often zerU.S.S.G. 2B1.3.
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 18 U.S.C. 1366• 49 U.S.C. 60101• 18 U.S.C. 924c

Energy facilities; powerutilities; interstate gas pipelinefacility.

Destruction of energy facility. Similar to the pipeli

discussed above, Copenalize destruction might not adequatelAccording to the stapenalties of up to 10 actual damage of ovfive years (attempt oover $5,000).Because the U.S. Seapplied to property suggests extremely destruction of such could occur with litsentences.One method DOJ uappropriate results i924c to similar crimbe used to obtain Femandatory, consecucriminal act must ina “firearm” or a des
Legal

Authority

Critical

Infrastructure

Protection/Description Sufficiency 

Penalty-

• 42 U.S.C. 2284 Nuclear fuel facility. Any act of destruction, violence,

sabotage.

• 18 U.S.C. 1362 Telecommunication lines. Any act of destruction. This provision, whi

protect telecommunstations, may lack nto the energy facility above, an offender wfirearm or other desend up causing subsbe subject to a commThe basis for this is Guideline 2B.1.3. Cmaximum term of teGuidelines will sugwhere weapons are 2K1.4) or if part of (U.S.S.G. 3A.1.4) Hweapons are used, aprevious crimes, the militate toward a far zero to six months – are used.
B-1

APPENDIX B

The United States Sentencing

Commission

1. What is the United States Sentencing Commission’s mission?

2. Why did Congress create the Sentencing Commission?

3. How do the Sentencing Guidelines Work?

4. How is the Sentencing Commission Structured?

5. Who are the Commissioners?

6. What is the process for amending the Sentencing Guidelines and how much time

would the Sentencing Commission require to amend the existing Guidelines?

1. What is the United States Sentencing Commission?

The United States Sentencing Commission is an independent agency in the judicial branch of

government. The Commission’s principal purpose is to establish sentencing policies and

practices for the Federal courts, including detailed guidelines prescribing the appropriate form

and severity of punishment for offenders convicted of Federal crimes. While the development,

monitoring, and amendment of the sentencing guidelines is the centerpiece of the agency's work,

the Commission provides training, conducts research on sentencing-related issues, and serves as

an information resource for Congress, criminal justice practitioners, and the public.

The U.S. Sentencing Commission was created by the Sentencing Reform Act provisions of the

Comprehensive Crime Control Act of 1984, and its authority and duties are set out in chapter 58

of title 28, United States Code; procedures for implementing guideline sentencing are prescribed

in a new chapter 227 of Title 18.1

Congress charged the Commission with three significant ongoing responsibilities:

 

1

 See 18 U.S.C.§ 3553(a)(2); 28 U.S.C. § 991(b).
B-2

1. Evaluating the effects of the sentencing guidelines on the criminal justice system,2

2. Recommending to Congress appropriate modifications of substantive criminal law and

sentencing procedures, and

3. Establishing a research and development program on sentencing issues.

In addition to creating the Sentencing Commission, the Sentencing Reform Act abolished parole

for offenders sentenced under the guidelines so that the sentence received would be basically the

sentence served.3

2. Why did Congress Create the Sentencing Commission?

Disparity in sentencing has long been a concern for Congress, the criminal justice community,

and the public. After decades of research and debate, Congress decided that the previously

unfettered sentencing discretion accorded Federal trial judges needed to be structured. Congress

created a permanent commission charged with formulating national sentencing guidelines to

define the parameters for Federal trial judges to follow in their sentencing decisions.

Organized in October 1985, the U.S. Sentencing Commission submitted its initial set of

Guidelines and Policy Statements to Congress on April 13, 1987. Prior to this submission, the

Commission held 13 public hearings, published two drafts of guidelines for public comment, and

received more than 1,000 position papers from individuals and organizations. After the required

period of congressional review, the guidelines became effective on November 1, 1987, and apply

to all offenses committed on or after that date.4

 

2

 The Sentencing Guidelines are designed to incorporate the purposes of sentencing:

• just punishment, deterrence, incapacitation, and rehabilitation;

• certainty and fairness in meeting the purposes of sentencing by avoiding unwarranted disparity among

offenders with similar characteristics convicted of similar criminal conduct;

• sufficient judicial flexibility to take into account relevant aggravating and mitigating factors; and

• advancement in the knowledge of human behavior as it relates to the criminal justice process. 3 Under the law, inmates may earn up to only 54 days of credit a year for good behavior. 4

 Shortly after implementation of the guidelines, Defendants throughout the country began challenging the

constitutionality of the Sentencing Reform Act, claiming improper legislative delegation and violation of the

separation of powers doctrine. On January 18, 1989, in the landmark case of Mistretta v. United States, the Supreme

Court rejected these challenges and upheld the constitutionality of the Act and the Commission as an independent

judicial branch agency.
B-3

3. How do the Sentencing Guidelines Work?

The United States Sentencing Commission has authority to submit guideline amendments each

year to Congress between the beginning of a regular congressional session and May 1.

Amendments automatically take effect 180 days after submission unless a law is enacted to the

contrary.

The Guidelines take into account both the defendant’s count of conviction and actual nature of

the criminal conduct by assigning a base offense level (a number) that serves as a starting point in

assessing the seriousness of an offense. This base offense level can increase or decrease based on

the circumstances of the particular case. The factors that modify the base offense level ("specific

offense characteristics") are enumerated in the guidelines. A base offense level, modified by

specific offense characteristics and general adjustments, forms one axis of the table used to

determine sentencing ranges. The sentencing table’s offense axis extends from level 1 (least

serious) to level 43 (most serious).

The other axis reflects the defendant’s criminal history as expressed in one of six categories

(Category I-Category VI). The point at which the offense level and criminal history category

intersect on the sentencing table determines an offender’s guideline range. In order to provide

flexibility, the top of each guideline range exceeds the bottom by no more than six months or 25

percent (whichever is greater). Ordinarily, the judge must choose a sentence from within the

guideline range unless the court identifies a factor that the Sentencing Commission failed to

consider that should result in a different sentence. However, the judge must in all cases provide

the reasons for the sentence. Sentences outside the guideline range are subject to review by the

courts of appeals for "reasonableness," and all sentences can be reviewed for incorrect guideline

application or sentences imposed in violation of law.

4. How is the Sentencing Commission Structured?

Unlike many special-purpose “study” commissions within the executive branch, Congress

established the U.S. Sentencing Commission as an ongoing, independent agency within the

judicial branch. The seven voting members on the Commission are appointed by the President

and confirmed by the Senate. The Attorney General is an ex officio member of the Commission,

as is the Chairman of the U.S. Parole Commission.

The Commission staff of approximately 100 employees is divided into five offices with the

director of each office reporting to the Staff Director who in turn reports to the Chairman. The

five offices are: General Counsel, Monitoring, Training and Technical Assistance, Policy

Analysis, and Administration.
B-4

In addition to developing the initial guidelines, the Commission:

• monitors the guidelines’ operation through a comprehensive data collection system;

• conducts sentencing-related research;

• collects and disseminates information on Federal sentencing practices;

• provides reports and technical assistance to Congress and the judiciary on sentencing

issues;

• revises the guidelines as necessary;

• trains thousands of judges, probation officers, prosecutors, defense attorneys, and

others involved in the sentencing process;

• operates hotlines to assist judges, probation officers, and prosecuting and defense

attorneys with guideline application;

• assesses the guidelines’ effectiveness in achieving the sentencing purposes of just

punishment, deterrence, incapacitation, and rehabilitation; and

• responds to requests for information from the courts, inmates, the general public, the

defense bar, students, professors, the business community, and Congressional offices.

5. Who are the Current Commissioners?

Congress set forth slots for nine commissioners: seven voting and two non-voting, ex-officio.

Commissioners are appointed by the President. Currently, there are only five sitting

Commissioners: two others are waiting for confirmation by the Senate. The following is a listing

of the current U.S. Sentencing Commission commissioners:

Richard P. Conaboy of Scranton, Pennsylvania, was sworn in as Chair of the U.S. Sentencing

Commission on October 11, 1994. He currently serves as a United States District Judge for the

Middle District of Pennsylvania. In 1989, he became Chief Judge; he took senior status in 1992.

Formerly Judge of the Court of Common Pleas of Lackawanna County (PA), Hearing Examiner

for the Pennsylvania State Liquor Control Board, Pennsylvania Deputy Attorney General, and a

practicing attorney in Pennsylvania. From 1977 to 1980, he served as Chairman of the

Pennsylvania Commission on Sentencing. He also served as Chairman of the Pennsylvania Joint

Council on Criminal Justice, Chairman of the Pennsylvania Conference of State Trial

Judges, and Vice-Chairman of the Pennsylvania Governor’s Justice Commission.
B-5

Michael S. Gelacak of Centreville, Virginia, formerly practicing attorney in Washington, D.C.

and Buffalo, NY. He served as Chief Counsel of the United States Senate Subcommittee on

Penitentiaries, Staff Director of the Senate Subcommittee on Criminal Laws, and Minority Staff

Director of the Senate Judiciary Committee. He also served as Legislative Director for Senator

Joseph R. Biden, Jr., from 1983 to 1985.

Michael Goldsmith of Salt Lake City, Utah, Professor of Law at Brigham Young University.

Formerly Assistant Professor of Law at Vanderbilt Law School, Counsel to the New York State

Organized Crime Task Force, Assistant U.S. Attorney for the Eastern District of Pennsylvania,

Senior Staff Counsel to the House Select Committee on Assassinations, and Deputy State’s

Attorney for Chittenden County, Vermont. Professor Goldsmith received the Order of the Coif

from Cornell University Law School. He has written numerous articles on a wide range of

criminal law topics, including sentencing and Federal guidelines.

Deanell R. Tacha of Lawrence, Kansas, United States Circuit Judge for the Tenth Circuit.

Formerly Chair of the Judicial Conference’s Committee on the Judicial Branch, Vice Chancellor

for Academic Affairs at the University of Kansas, Associate Dean at the University of Kansas

School of Law, Professor of Law at the University of Kansas, and a practicing attorney in Kansas

and Washington, D.C. Listed in Outstanding Young Women in America. Received Jaycee’s

"Outstanding Young Woman in Kansas" Award in 1980 and Girl Scout’s "Women of Distinction"

Award in 1994 among numerous other awards.

Ex-Officio Members:

Michael J. Gaines of Little Rock, Arkansas, was designated as Chairman of the U.S. Parole

Commission on February 4, 1997. Formerly, he served as Commissioner of the Parole

Commission’s National Appeals Board, Chairman of the Arkansas State Board of Parole and

Community Rehabilitation, Executive Director of the State Supreme Court Committee on

Professional Conduct, and Criminal Justice Liaison and Pardon and Extradition Counsel to then

Governor Clinton.

Mary Frances Harkenrider of Chicago, Illinois, Counsel to the Assistant Attorney General for

the Criminal Division, United States Department of Justice. Formerly a Federal prosecutor in the

Northern District of Illinois and a Senior Supervising Attorney for the City of Chicago. She has

taught Trial Practice and Pretrial Procedure classes as an Adjunct Professor at Northwestern

University School of Law.
B-6

6. What Is The Process For Amending The Sentencing

Guidelines And How Much Time Would The Sentencing

Commission Require To Amend The Existing Guidelines?

Congress did not legislate minimum or maximum time requirements in the Sentencing Reform

Act.5 Rather, the Sentencing Commission is left with discretion to select relevant issues and

topics for sentencing reform and enhancement. In principle, changes proposed by Congress or

the Sentencing Commission may take effect on an expedited basis—in some cases, as quickly as

several months’ time. All other amendments require at least six months to one year, assuming

there is no opposition.

The Sentencing Commission operates under its Rules of Practice and Procedure.6

 Pursuant to the

Rules, Amendments are introduced into the process in three ways:

(1) by Congress, as a mandated Emergency Guideline Amendment (Rule 4.1);

(2) by the Sentencing Commission, pursuant to authority delegated from Congress

and approved by four of the Commissioners (Rules 2 and 4.1);

(3) by any party, via submission, as a proposed Guideline Amendment (Rules 4.1 -

 4.5).

Congress may direct the Sentencing Commission to amend the Guidelines where a new statute

requires an addition to the Guidelines. Congress may also force an amendment where Guidelines

are inconsistent with existing Statutes. In both cases, Congress notifies the Commissioners,

provides the necessary language, and the amendment occurs without public debate or Sentencing

Commission deliberations. This is the most efficient method and requires the least amount of

time.

The Sentencing Commission may draft the Guideline Amendment when instructed to by

Congress. In contrast to Congress’ unilateral action to amend the Guidelines, the Sentencing

Commission has authority to discuss and to draft Amendments, but only on an “emergency

amendment basis”. See 28 U.S.C. § 994(a); Rules of Practice 2.2 (1997).7

 Under both scenarios,

Congress must instruct or delegate the power to the Sentencing Commission to amend the

Guidelines outside of the normal process.

 

5

 28 U.S.C. § 1991(b) (1995).

6

 Rules of Practice and Procedure, U.S. Sentencing Commission (July 1997) (the “Rules of Procedure”). The

Sentencing Commission promulgates the Rules of Procedure pursuant to Congressional mandate. 28 U.S.C. §

995(a)(1). The Sentencing Commission amended its Rules of Procedure in June 1997. For background information

on the recent changes, refer to 61 Fed. Reg. 39493-39496 (July 19, 1996) and 61 Fed. Reg. 52825-52826 (October

8, 1996).

7

 Note that the two ex-officio Commissioners do not have voting authority. Rules of Practice 2.1 (1997).
B-7

Other interested parties may propose amendments to the Sentencing Guidelines. The proposals

take the form of submissions and set forth all arguments and rationale for the proposed

amendments. The cycle—which lasts one full year—typically follows the following time frame:

• December to February - Received Submissions for Amendments.

• March - April - Debates and considers public reaction; votes on Amendments.

• May 1 - Sends Amendments to Congress.

• May - November - Congress Reviews.

• Enacted in November, unless Congress explicitly rejects.

Under this third scenario, any organization may propose an Amendment to the Guidelines. The

cycle technically lasts one year. In reality, however, the Commission often takes up to two to

three cycles before hashing out a particular change to the Guidelines.8

The Sentencing Commission may also invite the airing of an issue, or series of issues. According

to the Rule of Practice, the Sentencing Commission publishes a “Notice of Priorities” in the

Federal Register. The purpose of this Notice is to—

“make available to the public a notice of the tentative priorities for future Commission

inquiry and possible action, including areas for possible amendments to guidelines,

policy statements, and commentary.”9

It may be appropriate that the Sentencing Commission immediately list critical infrastructure

assurance as a priority issue.

 

8

 Based on conversations with John Steer, General Counsel to the U.S. Sentencing Commission. See Angeli, A

“Second Look” at Crack Cocaine Sentencing Policies: One More Try for Federal Equal Protection, 34 AM. CRIM.

L. REV. 1211 (1996) (Demonstrates the political and legal complexities of amending the Sentencing Guidelines). 9

 Rules of Practice, 5.2 (May 1997).