The Sentencing Commission Wants Your Feedback

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By Kathleen Cooper Grilli
General Counsel, U.S. Sentencing Commission

On June 28, 2018, the U.S. Sentencing Commission published a request for comment in the Federal Register, seeking input on its list of tentative priorities for the amendment cycle ending on May 1, 2019.  This event signals the start of the Commission’s annual amendment cycle, during which the Commission periodically reviews and revises the guidelines, guided by comments and data coming to the Commission’s attention.  Why should compliance professionals sit up and take notice of this publication?  The answer is quite simple, the list includes “[a] multiyear study of synthetic drug offenses committed by organizational defendants, including possible consideration of amendments to Chapter Eight (Sentencing Organizations) to address such offenses.”

What does this mean?  In 1991, the Commission did not include drug offenses in the organizational fine provisions and suggested that it might revisit that decision sometime in the future.  Over the ensuing 27 years, commissioners periodically considered whether the time had come to so, but other more pressing priorities consumed the Commission’s agenda.  Recent events raise the question of whether the exclusion of drug offenses from Chapter Eight is ripe for reconsideration.  

For the past several years, the Commission has engaged in a study of synthetic drugs.  The rise in use of synthetic drugs, including fentanyl and its analogues, synthetic cathinones, and synthetic cannabinoids, is an issue of concern to the Commission, as well as to Congress, the Department of Justice, federal and local law enforcement agencies, and health officials around the country, both because of public safety and public health concerns.  Commenters on the topic consistently observed that the fentanyl epidemic has its roots in the over-prescription of opioid pain medications.  Those commenters also advised the Commission that synthetic cathinones and cannabinoids are frequently trafficked via convenience stores and headshops.

The Commission’s multi-year study of this topic culminated this year in an amendment to the drug trafficking guideline.   The amendment did not address organizational drug offenders, but the Commission’s data file identified a prominent organizational involvement not seen in most other drug offenses.  This led the Commission to question whether the time has come to prioritize amending Chapter Eight to cover drug-related offenses.  Broadly defined, those offenses might include drug trafficking offenses, misbranding and adulteration of drugs, the sale of unapproved drugs, and dispensing certain drugs without a prescription.  If adopted, this priority could lead to guideline changes with a potential impact on the pharmaceutical, healthcare, and certain retail industries.

But you say, “I am not a compliance professional in those industries, so why I should be interested in this publication?”  To that I explain that Chapter Eight of the Guidelines Manual includes the seven elements of an effective compliance and ethics program.  Conceivably, the Commission’s study of organizational drug offenses could impact Chapter Eight, including those elements.  Such changes would have a direct impact on your day-to-day work.

That said, the Commission has not yet made its final decision on whether to act in this area.  Now is your opportunity to provide input to the Commission on whether it should adopt this priority and to suggest how broad or narrow its study should be.  Notably, since the Commission has signaled that the study will take place over multiple amendment cycles, you also have the opportunity to suggest how the study should be conducted.  For example, should the Commission create an ad hoc advisory group of industry professionals to assist it in the study of the relevant issues, like it did before the 2004 amendments to Chapter Eight.  The Commission welcomes your feedback.  You can find more information on how to provide that feedback on the Commission’s website.  The Commission will make its final decision on priorities at a public meeting in August after considering all the public comment.  Compliance professionals’ thoughts on this matter are critically important and we hope you answer the call for that feedback

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