Principal Associate Deputy Attorney General Marshall Miller Delivers Testimony at the United States Sentencing Commission Public Hearing on Proposed Amendments to the Federal Sentencing Guidelines

Note: Watch testimony here.

Remarks as Prepared for Delivery

Thank you, Chair Reeves and Commissioners. Last October, Deputy Attorney General Lisa Monaco urged this Commission to strengthen the guidelines applicable to offenses involving the sexual abuse of a ward. As her principal deputy, I speak for the Deputy Attorney General — and for the department — when I express how grateful we are that the Commission adopted this issue as a priority item for consideration. We strongly support the Commission’s proposed amendments to these guidelines.

Sexual misconduct has been a serious problem in Bureau of Prisons (BOP) facilities for many years. Whether you look at data, examine individual cases or listen to victims and advocates, the bottom line is clear: far too many individuals in custody have experienced the trauma of sexual misconduct, and there has been far too little accountability.

Given her deep concerns about this issue, the Deputy Attorney General asked me to lead a top-to-bottom working group review of the department’s response to sexual misconduct by BOP officials. Last fall, we published a report with over 50 recommendations, every one of which the Deputy Attorney General adopted. That report has been made public, and the department and the Bureau of Prisons are hard at work on implementing its recommendations.

Now, many of the group’s recommendations are focused on ways to prevent these offenses from occurring in the first place, as well as ways to promote reporting and enhance investigation.

At the same time, the department believes that accountability for perpetrators is also a critical element of the solution. To that end, the Deputy Attorney General has asked every United States Attorney to treat these offenses as a priority. And at her request, I have also engaged with the U.S. Attorneys, as well as the leadership of our Civil Rights and Criminal Divisions, about the importance of bringing these cases and considering the full array of statutory authorities when prosecuting them.

We also believe the Sentencing Commission has a critical role to play in promoting accountability, and we strongly support the Commission’s proposal to strengthen the guidelines applicable to these offenses, including, critically, the guideline applicable to sexual abuse of a ward.

Application of the current guideline routinely results in a sentencing range that is far too low to address the egregious conduct in these cases. In the mine-run case, the guidelines recommend a sentencing range of 15 to 21 months for sexual abuse of a ward — 10 to 16 months where the defendant pleads guilty — ranges that fail to reflect the severity of the crime and the inherently coercive nature of the prison environment, and are way out of step with the statutory maximum sentence of 15 years.

As the department’s prosecutions bear out, perpetrators exploit a deep and inherent power imbalance, which enables them to abuse their victims without needing to resort to physical violence, threats or overt coercion. We’ve seen time and again that victims in these cases have been sexually abused before, or have mental health disorders; frequently, they battle drug addiction or do not speak English. In some instances, the very BOP employees who provide lifeline services like drug treatment and spiritual counsel have been the ones who commit the abuse. 

One year ago, a former BOP chaplain pleaded guilty to multiple counts of sexual abuse of a ward. In the words of the sentencing judge in the Northern District of California, this former chaplain “preyed on women who could not consent and were not free to say no.” Yet even with a multi-count adjustment, the guidelines range for the offense was only 24 to 31 months – a range the judge described as “radically inconsistent with the actual nature of the harm done.” Though he could not recall a single time he had varied upwards before in his many years on the bench, the sentencing judge determined that a dramatic variance to 84 months was warranted. We have seen judges across the nation react similarly, recognizing the deep disparity between the severity of this crime and the lenity of the corresponding sentencing guideline.

In recent years, our society’s understanding of the seriousness of sexual abuse has evolved. Congress has responded, repeatedly raising the applicable statutory maximum for sexual abuse of a ward, from one year to five to the current 15 years in prison. But to date, the guidelines have simply failed to keep pace. The Commission’s proposed amendments would address that discrepancy, and the department urges the Commission to promulgate these updated guidelines.

Finally, while the focus of my testimony today is on the guidelines related to sexual abuse of a ward, the department also supports the Commission’s proposed amendments to implement the 2022 reauthorization of the Violence Against Women Act. That statute included critical new authorities to hold accountable officials who commit sexual abuse, including outside the prison setting, and the Department supports the Commission’s common-sense proposals to implement them.

With that, I thank the Commission again for its time and consideration, and I’d be pleased to answer any questions that you may have.