Welcome, everyone. Thank you so very much for joining us for our third day of non-profit Power Week with Fundraising Academy. Today, we have with us our great friend, Jack Alotto from Fundraising Academy. He is bringing questions that you are going to want to have handy when it comes to handling donor objections. And these questions will help to provide you hopefully some ease in this conversation. So stay with us before we dive deep with Jack. We of course want to remind our viewers and our listeners who we are. So Julia Patrick, good morning, good afternoon. Thanks for joining me. Julia is the CEO of the American Nonprofit Academy. I get to play alongside Julia each and every day as our trusty sidekick. As co-host, I'm Jarrett Ransom, your non-profit nerd CEO of the Raven Group. And we are honored to have the continued support and investment from our amazing presenting sponsors. Thank you so very much to Bloomerang American Non-profit Academy, Fundraising Academy at the National University, Non-profit Nerd, your part-time controller, staffing boutique, and the non-profit thought leader. If you have been with us any episodes in the last couple of weeks, you've heard that we have over, we have passed our 600 mark. And so here's to 600 more episodes with the non-profit show. But you can find all of our episodes on Roku, YouTube, Amazon Fire TV, Vimeo, and podcast. So we welcome our podcast listeners as well. So Jack, we are thrilled to have you back my friend. Welcome. Thank you. I'm excited to be here as usual. And I'm working with both of you today. So that is a special treat for me. That's right. We have, we have taken turns with you on some frayas and are asked and answered. And, you know, that Friday is a dedicated day to questions, as this week is dedicated to questions from the Fundraising Academy, a cause selling education model. And so for those of you that have joined us Monday and Tuesday, we had other questions. And Jack's here to bring us questions about objections. So share with us a little bit about this eight step cause selling cycle and remind us about the phase two, step six that we're currently in. So as you can see from that concentric circle that we have up on the screen, the first part is where we're not actually meeting with a prospect. We're doing our homework. That second part, phase two, is where we're actually in face to face meetings. And this step six, handling objections is the step just before we make the ask. So this is really an important step in this fundraising cycle. And when we do it successfully, we could get to that ask and get to a successful close on the gift. So it's really important. But the first thing I want to say about this, and I love watching the previous two shows with Pearl and Mui, it's been great, is that this whole week about asking and listening. And I like to say this about asking, especially as it relates to handling objections, we have to ask in a way that expresses our belief that we want to get to the answer of what that objection is. And our tone of voice, our style of talking, and all of those things are really important. Once we hear the objection, then as Judge Judy says, put your listening ears on and listen real intently to what the objection is. But listen with an open heart and an open mind. And remember part of the hearing of objections, as Julia said earlier, is making us a little uncomfortable. And when we get a little uncomfortable, then we learn things from our prospective donors. You know, I love that you framed this up because you're right. If we are going into this with a more positive way and looking at objections in a different manner, it's going to reduce our stress. Right. And it's all about our attitude that we branch with. Remember what we say in cause selling, objections indicate a clear sign of interest. If you're dealing with a prospective donor and they're not offering you objections or questions, I am pretty sure you've lost them. When people object to things and want more information or want to hear more about some program or your cost, they are interested. And believe me, in my career, I could share many objections that I've heard. And when people share objections, I know that they're interested in learning and getting to some resolution to what their objection is. Great mindset because I know objections can be, as Julia shared, very uncomfortable. And so you're going to share with us questions throughout today's conversation, Jack, about how we can navigate these conversations in a positive way that ignite. I'm going to keep using that word throughout today's show. It just ignites that continuous interest of the donor. So let's get started with some of these questions. And you know, our first one here is, what are questions that might make you hesitant to make a gift? And we're going to do our best to share these questions for our viewers and our listeners. What do you say for this one, Jack? So that first one, what are questions that might make you hesitant to make a gift, which is a great question because they may say, well, this, you know, I like, you know, I'll both know I worked in healthcare. Sometimes I got this question. They say, well, you know, I came to your emergency room and I had a wait 30 minutes in the ER with my child. So that's a question that might make them hesitant to make a gift. So my typical response would be, especially when I worked in healthcare, I'd say, you know what, I'm going to find out what happened. I'm going to talk to one of the nurses or I'm going to talk to one of the physicians in the ER and see why it took so long. And that helps a person understand that you are going to get to the bottom of what their objection is. But you know what I like about this question? What are questions that might make you hesitant to make a gift? You know what the other part of this question is? What are some things that might help you make a decision about making a gift? The opposite. You see what I'm saying? So here, tell me what your hesitations are and tell me what things you want to hear about. So that you can get to making a gift. So that's sort of the opposite. And it's really an important thing. By the way, I'm going to, since you're using the word ignite, ignite this question, I'm going to quote one of my favorite songs, Jared, which is from The Doors. Come on, baby, light my fire. You just cannot amaze us enough, Jack. It's fantastic. I love your switch on, you know, keeping it positive in that question. And I think that's fantastic. The other question we had here, you know, is really about have we adequately addressed your concerns? So I can imagine with the same example, you can say, I talked to the ER, you know, this is what I found out. And then have we adequately addressed these concerns as a follow up question? How has that worked for you? Well, I think that's the way to do it. If they say, Jared, no, I'm not feeling, I don't think you've adequately answered my objection. Then you have to come back and give them an adequate answer. Because if you don't, that objection is going to linger on into the asking part of this fundraising cycle, which would make it much harder for you to close that gift. So this is a really important question and their answer to it. And hopefully their answer will explain why you haven't adequately answered. So in the example I gave, if she says to me, well, I was there 30 minutes with my child, he fell and, you know, it took so long. And I said to her, well, that day, we had this trauma patient come into the ER. And she may say, oh, okay, I understand that you have to work with the most severely injured first. Or she may say, I'm sorry, that's not good enough to answer. So then you have to figure out how that system works. And these are questions I got in healthcare, guys. I would say to her, well, our philosophy in the ER is that those who are most injured must be dealt with. We triage our patients. And maybe they looked at your son and thought he's going to need a couple stitches and he'll be fine. You know, Jack, one of the things as we move on to question three, I'm hearing you say, in a way, it's okay not to know the answer for that immediate objection. But the mindset is, let me investigate and come back to you. So the question, the next question that we have is, have I explained how our organization is uniquely positioned to address the problem that you care so deeply about? Like, have I navigated this in a way that's helping you make a decision? Is that the right spirit? Yes, I think this is, again, a very important question. So if someone is coming to you, if your program is in social services, and you are dealing with the homeless issue in your community, and they care very deeply about this issue, you have to make sure that they understand how your organization and what you're doing with that problem is adequate in fulfilling their needs to impact that homeless problem in your community. And if you don't do that, again, it's going to be a stopper, a blockage, to closing that gift when you get to the next part of the cost-selling cycle, which is making the ask. Yeah, interesting. Yeah, I think this is an absolute fascinating thing. And I'm really rethinking the process and seeing how I can be more comfortable in this objection piece. And that one of the things that I've learned that I'm learning from you today is it doesn't mean that the whole relationship's gone and that donor rejection is, goodbye, move on to the next, right?  They go away. Right. So when people would call me up, like I would send a direct mail out and somebody would call me up or they'd send me an email, I loved it. I wanted to communicate with them because they needed something answered. And it could be something like a person who comes to the ER or even something more serious about a spouse of someone who died in your hospital.  They just want to hear from someone. And of course, I'm not a healthcare professional, but I would get the answer for it. And that's really the key there, guys. And I think Julia, you alluded to that a few minutes ago. If I don't have the answer and I don't know how to answer the question or an objection or whatever it is, you have to say, I will find out the answer for you and get back to you. That's one of the things that we do with volunteer solicitors. If we send volunteer solicitors, they don't have all the answers. They're not an expert in all of the programs. And believe me, healthcare, I'm not a doctor, although I kind of play one right now. But you know what I'm saying? So you have to go back and get the answer. And if you don't adequately answer their objection, it's going to be tough to get to that next step. So the next question that we have, which is really an interesting thing is, you start off by saying to this prospective donor investor, thank you for expressing your concerns.  Or what are you doing here with this question? Well, I think it's so important to acknowledge that they have a concern and then thank them for expressing their concerns. It's back to that principle that if they don't express their concerns and, you know, they're somehow stalling or don't want to talk to you about it, then you really cannot get, you can't move through the cycle. And that's so it's really important. And I think it's, I think it's really important when people have a complaint. You know, one of this, I like to use this example. If you lose a donor, a lapse donor, we talk about this early in our cycle. One of our actually in stewardship, which is at the end of the cycle, what we say is if you want to re-engage with a lapse donor, ask them why they stop. Ask them about their concern. This question is so much like that. What did you, what did we do that caused this concern with you? What did we do as an organization that made you stop giving to us? And when they give you the answer, it's going to be really enlightening and it may make you feel a little uncomfortable. But it's going to tell you so much about how to address that objection. Yeah, I think it's just all, you know, peeling back those layers of getting to their core interest. And I've shared my example, one of many, Jack, because I too have, you know, had to handle, handle objections is, you know, and it came from left field, but I should have been prepared for it. It was a couple that had, you know, looked at GuideStar and they didn't like some of the ratings that they were seeing. And so for us to be mindful of some of those ratings that are public knowledge, and really, you know, addressing that concern of theirs, and, and really just letting them know, very similar to the ER triage, you know, I will look into this absolutely find out what we can do, you know, to shore up your concerns. And, and that is something that could very well come up for any of you watching and listening, because savvy donors definitely do, you know, they, they Google and they search all kinds of things, and this is public information. Right.  And part of that testing phase happens when you have objections. They're testing, they want to know that you're going to, you know, we're a relationship building model. Cause selling is about relationships and testing and objections. And all of the things that we talk about throughout the cycle is all about building relationships. And those things that they object to, they're testing your ability to adequately answer those and to, and that strengthens the relationship. Yeah. So when you say that, I guess a question that I have or I'm looking for a comment on this is that even though I see the logical progression that the cause selling cycle goes through and navigates through so brilliantly, this is not just a one point in time. Right. Objections and maybe the better word are questions are going to be coming up throughout this. Sure. Absolutely. The moment you sit down with that donor in the pre approach or the approach before you even get to this phase, they may offer some objections.  Well, there are three or four animal welfare organizations in our community. Why should I support yours over the humane society or some foundation for animals or whatever it is. So they're going to be asking those questions all the time. That may not sound like an objection, but questions kind of have this sort of tint of their wondering what's going on here. And answering those questions or finding out the answers is the key. It's just a great thing.  We're not at loggerheads when they offer an objection. They want more information so they can get to yes. You want to give them more information so they can get to yes. Well, let's get to another question. And this is a kind of an interesting thing because this in some ways is, I've got to believe different pre pandemic, but it's, it deals with when a donor has to leave. And that question, can we reschedule a better time for you? Walk us through that, the realities of, you know, how maybe our time together gets disrupted. So I think this is a great question. And it's related to a lot of other things that the donor may say as part of an objection, like we're sitting together and the donor says, you know what, Jack, I got to go. I got to pick up my kids from school. So what do you answer? You say, okay, bye. See you later. Have fun. Safe driving to your child's school. Now you say, when can we talk again about this? When can, when is a better time for me to have us to sit down with you?  So what is your response? Always be prepared to have a response. My response to somebody like that, shut, should, would you like to invite them to come to a meeting with us? When can I reconnect with you? When can the three of us sit down, your spouse and you and me to talk about this issue or our cause? So always be prepared. What is, what happens next? When a donor has an objection, always answer in your head, what do I say next to make something happen? Like I got to leave. I got to pick up my kids. Well, when's a more convenient time for us to sit and talk? It seems so natural because if you want to continue, to continue the conversation and, you know, you certainly want to honor their time and respect, you know, their other commitments. So you make it seem so natural, Jack.   You know, but I love saying when would be a great time for us to reconnect. Yeah. When can we talk again? Who should I invite to our next meeting? You know, who should be there? Who needs to be in the room? You know, I want to work with them as well. And all of these things tell your prospective donor that you want to build a relationship. And it may be with them as a couple or a family unit or whatever it is. I've worked with family foundations where their three children have to be in the room. They're teaching their children about philanthropy and they want to make sure that their children are in the room as they decide to make a gift for your organization. Yeah, it's huge. You know, we've got time for one more quick question. And this is kind of that, are you ready to support this project, which I love. It's not quite the ask, but it's allowing to move forward. Talk to us about this. Am I reading that question right? Oh, yeah. I think this is a great question. Because here's where you say, are you ready to support this project? And they say, you know what? I'm not ready. So what do you say to yourself? Or what do you say to them? What other information do you need? What other information can I provide to you? All open-ended questions. And I love a questioning strategy that's open-ended. And we talked about this quite a bit in the cost-selling cycle. Open-ended questions help you know that prospective donor, that donor, and then you can get to what the objection is or what the concern is, and you build that relationship. Every single time we adequately respond to an objection, we build relationship. Yeah. I love that. That's the bottom line. I love that. Well, I would really encourage everyone to go on to fundraising-academy.org. And you can access through the My Learning Portal donor conversation questions. And there are a ton of them. We are just scratching the surface, aren't we, Jared? I mean, this is just a small amount. But each part of the cost-selling cycle, the fundraising-academy folks have come up with questions. And more than a dozen, pretty much for each part of this, they are fascinating. They're natural. They are part of a conversation. It's really been interesting, Jack, to look at these.  Yes. Well, fantastic. You know, I said it earlier, you really do make this so natural for our viewers and listeners. Just to remind us, Jack, how long have you been in this profession? Yeah. So I have to really confess to that. Well, let me tell you this. When I first started, I had a full head of hair. So that's how long it's been. I think I've probably been doing this 30, 40 years. Fundraising for me is a passion. When we raise money for those causes, when we handle those objections and we get to and ask that it's successful, we're helping the world be a better place. Well, and you helped so many others through your CFRE coursework and mentorship with that.  It's just fantastic. If I could take you with me to all of these conversations, I certainly would. But the best I could do is channel Jack. So thank you for being here today. Well, thank you guys for having me. I love being with you too. And, you know, when I say you help the profession, you do. I may be a mentor at CFRE, but you are a mentor to a lot of people, even beyond the CFRE. So that's great. Thank you, Ignatius Elotto. You have really been great. Now I'm going to call you Ignatius because that's a power name, my friend. That's a power name. Check out Jack Elotto, CFRE, one of the, I'm going to say master trainers at Fundraising Academy. Jack, interestingly enough, also guides CFRE training. So for those of you who want to prep for the testing and things of that nature, Jack is the spirit guide, as we like to say, going forward. We also want to make sure that everybody knows about this really exciting national online cost selling accelerate. It's developed by Fundraising Academy to be a cohort. It's 10 weeks. It's pretty intense. You have to apply. It's not just open to everyone because it is a cohort, meaning that folks are going to be learning from one another and creating a system of support as they navigate their own profession. And so it's national. You'll get voices from all other parts of the country. Hannah Berger, who's going to be on with us on Friday, she's actually going to be running this cohort. So check them out. CEP 13 cohort. You can find that through the Fundraising Dash Academy. Yeah.  That's Hannah. She's a master trainer. I've learned so much from watching her in webinars and other things. She's awesome. And I totally think this is really a great thing to get involved with. No matter where you are in your career or in your understanding of Fundraising, you are going to learn a lot in this cohort. Okay, cool. Good to know. You know, it's going to be, this is something that you all have been doing over the years, right, Jack? So this is a tested process for developing even stronger fundraisers, correct? Absolutely. And we're going to go through that cycle and some other things about social styles and time management and not only running the fundraising cycle, I know we're at the end here, but also we give you so many tools to be better at running through that cycle, that relationship-building cycle. So that is really awesome, guys. Yeah. It's really, it sounds wonderful. When talking to Pearl about this, it makes me like, well, I want to join it, you know, take a break and add this to my world because I'm so intrigued by it. I really, really am. So check that out. Hey, again, thank you for joining us. I'm Julia Patrick, CEO of the American Nonprofit Academy, been joined today by the non-profit nerd herself, Jared Ransom, CEO of the Raven Group. Jared, thank you so much for bringing forward your time and your talent with us. And also thank you to our amazing sponsors. I always like to say, they're with us day in and day out. That includes Blumerang, American Nonprofit Academy, your part-time controller, non-profit nerd, Fundraising Academy at National University, Staffing Boutique, and Nonprofits.Leader. Again, these are the folks that help us bring this amazing content. And this week is really special. You know, Jared and I only do this a couple times a year. We call it the Nonprofit Power Week. It's where we do a specific group and drill down. And it's really an intense thing for ourselves, our viewers and our listeners. But we are really excited to have this different approach for what we think will help you be more powerful with your non-profits. So it's been a lot of fun.  Thank you. And so are the two of you. I appreciate being on. Love being on with you guys. It's a lot, a lot of fun. Get it? A lot, a lot of fun. I got it. I got it. I mean, I'm sure you've never heard that one before. Oh gosh. And other things I can't repeat to a family audience. No, no.  Hey, and as a family show and as family does, we want to remind everyone to stay well so you can do well. Thanks so much, guys. We'll see you back here tomorrow for another day of Nonprofit Power Week. Yeah.


This won't help. So it depends upon the substrate that we have. We'll do this also. Which is this book? I don't know. Ask him. Ask him. So can we make sure that the patient is able to do this? Yes. Can we make sure that the patient is able to do this? Yes. Okay. So what if it says 3750%? Sorry? 3750% Thank you.


You're watching FJTN, the Federal Judicial Television Network. The Federal Judicial Center and the United States Sentencing Commission present Sentencing and Guidelines, a conversation with Judge Diana Murphy. Now your host, Robin Rolland. Hello, and welcome to a conversation with Judge Diana Murphy. The purpose of today's broadcast is to introduce you not only to Judge Murphy and the workings of the United States Sentencing Commission, but also to all the commissioners. As you know, last November, a full complement of commissioners was appointed to the U.S. Sentencing Commission. Since then, they've been consumed in a whirlwind of work, from addressing open issues to working through the amendment cycle without stopping to take a breath. Judge Murphy, the chair of the commission, now stops to take that breath and reflect on the current and future work of the commission with Judge Fern Smith, the director of the Federal Judicial Center. In addition to their conversation, we have highlights from the May 2009th annual National Seminar on Federal Sentencing Guidelines, co-sponsored by the Commission and the Federal Bar Association. During that seminar, all nine commissioners appeared on a panel entitled Meet the Commission, moderated by James Spellman, who represented the Federal Bar Association. The commissioners commented on a variety of federal sentencing and sentencing guideline topics. For example, one issue that continues to arise is the crack versus powder cocaine debate. At the seminar, Judge Johnson updated the audience of mostly probation officers and attorneys on this issue. And in 1994, Congress directed the sentencing commission to conduct a study and to make recommendations. And in 1994, the commission said that the 101 ratio was really unjustified. And they voted in a very, very controversial decision by a 4-3 margin that the penalty should be equal. It went to Congress, as all of the commission's recommendations do, and Congress rejected it. Now, as I said before, even the three who voted against making it equal did say that 101 really is unjustified. So Congress sent it back. And in April 1997, the sentencing commission said that we will change the triggering amounts for powder cocaine from 500 grams to anywhere between 125 grams to 375 grams. So they would lower that. And they would change the 5-gram triggering mandatory minimum from crack cocaine from anywhere between 25 and 75 grams. That was sent to the Congress in April of 1997, and it sits there to this day. In addition to updates like Judge Johnson's, commissioners also informed the participants of issues which the commission might consider in future amendment cycles. Judge Kendall commented on whether alternatives to incarceration should be expanded under the guidelines. And I think sometimes people miss that. In that, it is viewed that the only real punishment is incarceration. Well, that's not necessarily the case. Probation is punishment. Home confinement certainly is punishment. Confinement in a community-based facility is punishment. All of those still can, all of those different alternatives. And again, let me just say I'm speaking for myself here. I've talked to some of the other commissioners and we've had some discussions about this. So I'm not purporting to speak for us as a group. But I fully expect that this commission will take a look at those issues. Issues of alternatives is set forth in the neighboring legislation. You'll get a chance to meet all of the commissioners as we periodically return to the panel discussion throughout the broadcast. And now let's turn to Judge Murphy and Judge Smith. Judge Diana Murphy was appointed chair of the United States Sentencing Commission along with the rest of the commissioners in November 1999. Judge Murphy currently serves on the Eighth Circuit Court of Appeals where she's been since 1994. She was appointed to the U.S. District Court for the District of Minnesota in 1980 and served as its chief judge from 1992 to 1994. Judge Murphy also served as a state district court judge from 1976 to 1980. Talking with Judge Murphy is Judge Fern Smith, the director of the Federal Judicial Center. Judge Smith became the center's director in 1999. She's been a judge for the U.S. District Court in the Northern District of California since her appointment in 1988. Similar to that, Judge Smith was also a state judge from 1986 to 1988. They spoke earlier this summer here in our studio. Judge Murphy, good morning. Good morning, Judge Smith. It's a real pleasure to have this opportunity to converse with you about the Sentencing Commission. Let's start with your role as the chair. What have you been able to accomplish since the commission finally got up to full strength and was able to start working again? Well I take that really as a question about what the commission has accomplished. And we've had a whirlwind of activity because, as you know, we started in the middle of November and the annual cycle ends on May 1. That's the deadline to get amendments and guidelines to Congress. And in that period of time, we promulgated guidelines in a number of areas, the No Electronic Theft Act, sexual predators, some firearms offenses, identity theft, methamphetamine sentences, and telephone cloning. And those were responding to legislative directives or new legislation. We also resolved a number of circuit conflicts in interpretation of the guidelines. And there are always some technical amendments to do. But just getting the place organized and running, of course, was particularly a responsibility of the chair. So we feel pretty good about what we've been able to do in this cycle. I would think so. Have there been any surprises? Well, yes. Yes, I've had several surprises. I would say two very pleasant ones and one not so pleasant. I really didn't know the other commissioners. There were two that I had met. So I wasn't really sure what kind of group we would have. Obviously, they were very qualified. But we're really working together very well. They're very knowledgeable about the guidelines. They're smart. They're hardworking. They're always very prepared. And perhaps most important of all, they have the quality of being able to listen to each other and to members of the public or interested groups. And that's enabled us to get this much done. So that would be a very pleasant surprise. It wasn't that I was expecting the other, but you never know. And the next thing that I guess I'd mention is that it's been a surprise how well what we've done has been received. And the reason I say that is because there are so many different groups that are affected by the guidelines. And you might expect naturally that prosecutors and public defenders, probation officers, members of industry groups, Congress, all have some different perspective in the Department of Justice, of course. And to be getting the positive feedback that we have from such a variety of groups who seem to understand the complexity of how we have to meet so many different concerns, that's been a very gratifying surprise. The unpleasant surprise was to discover that while there were no commissioners, there weren't any at all for 13 months. And for a time period before that, extending back really a couple of years, there were vacancies that came on the commission that weren't able to be filled because the appointing forces weren't able to agree. And the budget was cut way back because of that, because the view on the Hill was, well, if there aren't commissioners, you don't need as much of a budget. And it wasn't unreasonable in some respects. But now we're all there, and we have a greatly reduced staff. And so we've been working really hard on bringing that up to what it was before. Well, I'm sure that's a lot of work. I heard that in late May, you and your fellow commissioners met for a few days on a goal-setting retreat. Tell me about that. What kinds of things did you discuss, and what kind of results were you hoping for? Well, that was the first time that we ever were able to sort of relax because of the fact that we had this very short cycle to do our work for this year. And so here was an opportunity for us to sit back, reflect on how we felt about what we had done during the year, substantively, but also how we had done it if we were happy with that. And I think that took less time than I thought it might when we were setting up the retreat and the agenda for it because pretty much people were contempt on both scores. Then we also, we had learned something about the history of past commissions during our confirmation process and preparation for it. And we want to learn from the strengths and problems also that occurred in the past. And so we took a little time reflecting on what we could about the history and to build on what has really worked well and also to look out for some of the pitfalls that popped up. And then finally and very importantly, we wanted to think about what we wanted to do in the short term future and in the long term where the terms are staggered. So we have different terms, but we're all going to be there for a limited finite period of time. And we want to do as much as we can to make these guidelines effective, workable, to be able to advise Congress on sentencing policy. And so we worked out an agenda for this coming year, a tentative agenda. We published it already in the Federal Register. We'll be getting feedback and we might alter it somewhat depending upon the feedback. But we also talked about our longer range, some longer range plans. Are there any of those future plans that you would like to discuss with us today? Well, yes, I, just for this year, of course, we have published the notices that indicated and we're hoping to work on economic crimes. The Commission in the past has had some unfinished work in theft, fraud, tax, money laundering where there have been some problems. We're going to have an economic crime symposium. And what we have conceived of, and Commissioner O'Neill is assisting me in co-chairing an effort to put together a third symposium for the Commission this fall, focusing on economic crimes. We've scheduled it for, I think it's October 12 and 13. It's the Thursday and Friday of the week following Columbus Day. And it will be held at George Mason University Law School in Arlington, Virginia. We're thinking of an invited audience of about 175 to 200 persons. And that audience will be multifaceted, consisting of the Federal Legal Community Representatives, Judges, Probation Officers, Attorneys, also some representatives of academia and perhaps of the business community. And our focus, while it's called an economic crime symposium, we're thinking of within that broader umbrella of including a focus on a number of issues. As many of you have heard from what has been said about the amendments recently submitted to Congress, a number of them are related to new ways of committing old crimes and in some cases new crimes, but all involving some aspect of technological development. No doubt there's going to be continuing interest in this area by Congress and others. There's a great deal that we need to learn and we have some information that we can share. And so we hope to spend part of our symposium conference focusing on those particular issues. The Department of Justice is going to be interested in working with us on some of these areas that have been tough in the past and trying to make them all work together. And right now there are 38 circuit conflicts that we've identified and the Supreme Court gave us the task of dealing with the circuit conflicts and we're in the process of developing some standards that we could use to decide which one should we do. The criminal law committee gives us some input on that of the criminal law committee of the judicial conference, but they've said they have 18 priorities. Well that's still quite a large group, so we're working on these standards. Those were some of the things that we'd be doing this year. We also have to some unfinished work in the sexual predators and firearms. I'd be very interested in knowing how the commission with all of these issues, this huge number of issues, how do you go about deciding which issues you're going to tackle and which specific guidelines you think need amending? Well we have the benefit of a lot of input. One of the ex-officio commissioners is the Attorney General or her delegate and we have a very able law professor on leave at the Department of Justice, Third Kirk Patrick. I think the department does strongly support the institutional role of the commission. It would be very easy for the department when it's passing a crime bill to simply have as part of the bill a direction from Congress. You will jump the sentence and guideline seven levels for this particular enhancement and five levels for that, but it would totally undermine the role of the commission if all they were doing is responding to directives to increase something seven levels. That would not allow the commission a chance to deliberate and to calibrate the punishment. So we're willing to take our arguments to the commission and let them perform their deliberative role of establishing proportionality in the sentencing system. So we support that role strongly. So we have a way that we get the views of the Department of Justice. We have some advisory groups of criminal defense lawyers, probation officers, federal defenders, industry groups, let us know what they're concerned about. They also let people on the Hill know. And we hear from the Hill about things that Congress is interested in us doing. Right on the commission, of course, we've got quite a bit of expertise. Five of us have sentenced people with the guidelines. John has been with the commission since 1989. He was general counsel for many years. And the seventh commissioner had significant experience on the Hill working with the guideline process. And it's now a professor of criminal law and does some criminal defense work. So just within our own group, we have some ideas. The criminal law committee of the conference suggests what they're interested in. And they speak on behalf of the federal judicial branch. The staff comes up with ideas, too. We have a very talented staff. So there's really no shortage of ideas. It's just setting the priorities that realistically can be dealt with. I'm sure this doesn't come as a surprise to you, but the federal sentencing guidelines are not universally popular. And they have been criticized in the past over certain sentencing guidelines, especially where some drug offenses are involved and more particularly where mandatory minimum sentences are involved. Are these issues that the commission intends to address in the near future? Well, as you know, Congress has had quite a bit of interest in mandatory minimums. The commission's position always has been is that they are inconsistent with the guideline system set up by the Sentencing Reform Act. And we're hoping that to the extent we're able to give prompt and appropriate attention to congressional concerns that no further use will be made of mandatory minimums. There seems to be now some new interest on the Hill in revisiting the topic to see how well mandatory minimums have worked. We appeared just about two weeks ago at a House subcommittee hearing on mandatory minimums and went back over the studies that the commission has done in the past and the commission's reasoning about the limitations of mandatory minimums. And the committee seemed very interested in our viewpoint. We also understand that the criminal law committee would like us to update the report that was done about nine years ago on mandatory minimums by the commission and to the extent we're able to build up our budget because we need that for the staff to do all of these things. That's something that we may well undertake. That's kind of an interesting relationship between the commission and Congress. And it's one that has caused certain conflicts to arise. The commission is responsible for the sentencing guidelines and Congress enacts the mandatory minimums, which is something, as you mentioned, that the commission has often opposed. Do these occasional conflicts with Congress interfere with your ability to follow your original mandate in being the expert sentencing body of the system? Well, you know, we start out behind the eight ball a little bit on this because of the fact that there wasn't a commission for quite a bit of time, things built up. There was some frustration on the hill. And we recognize that Congress is supreme in this area. The commission is a creature of the Congress. We operate on the basis of delegated authority by Congress. The decisions that we make, even the decisions that we make in which we feel we're absolutely correct in, are still ultimately subject to Congressional review. And that's as it should be because they stand for election. We certainly don't. They're ultimately subject to the people in a way in which we, particularly five of us who sit in the commission, do not. So it's entirely appropriate, I think, for Congress to play the role that it does. But a very high-placed person in the Senate just said to me a couple of weeks ago that if we continue to be able to present things to Congress with a seven to zero vote, that Congress is going to respect our expertise. And I want to assure anybody who's listening to this that our seven to zero vote was not a rubber stamp at all. On some of the areas that we worked in, we had wide differences among the commissioners. And we worked through various options, trying to deal with all the different interests and problems that the particular guideline area involved. And so it was only by a lot of hard work and listening to each other and attending to all the different viewpoints that we were able to come up with these. But it does make a difference, Congress is telling us. And we've also seen that when we go over, because we've made a lot of calls on the Hill, when we go over, we have a great amount of data about the way sentencing has worked. And they're very interested when we are able to pull it together and show it to them in a way that they don't have much time to be looking at these things if we can come up with something that they can look at quickly and see the trend or what the problems are, that's very effective. And that's another reason that we're working on our budget because we need more research help and so on that we can, and to the extent that we can make some studies like one thing we may be able to expand the safety valve. There's, I met with the Attorney General Janet Reno recently and I've talked with the head of the Bureau of Prisons, Kathleen Hawks-Sawyer, about this. And the Attorney General said, well, you know, if you could do a study on recidivism rates for the people who have already been sentenced under the safety valve. And the idea people have that are experienced is that the recidivism is low. So, and if that's correct, these people didn't need huge long sentences to deter them. And so, that's just one of the areas that we'd be able to work on. Well, that's encouraging and interesting to hear examples of all three branches of the government working together in areas of common interest. Let's go back to you if we may. You have an interesting perspective in that you have been a district judge both before and after the sentencing guidelines came into effect. You are now a Court of Appeals judge and you are also the chair of the Sentencing Commission, three very different and unique positions. What is your perspective from all of these different experiences that you've had about the federal sentencing guidelines? Well, you know, having been a judge at the time they came in, I think it's fair to say most of us were at the very least somewhat skeptical of them. But, you know, they provide an objective standard by which a judge can sentence in a way that you build up some confidence level in being able to use those. And I think I also learned as a district judge that you have a lot of fact finding power that you can use to enable you to get the right sentence for an individual person. Let's face it, the district judges are the ones who are really using these guidelines, applying them to human beings in all kinds of situations. And I think this Supreme Court's decision in the United States versus Coon has helped allow the flexibility that judges needed. And I think that influenced the courts of appeal and I think just seeing it from the appellate perspective, you don't know all the details about the case, the way the district judge does. However, you need to make sure that the guidelines are being applied consistently in your circuit and consistent with the guidelines themselves and you would be concerned if there were disparities and so on. Then you get to being here where they're actually made and that's such a different process than judges go through with the kind of interaction you have with the public and with industry groups and where you have to publish every intent that you have and then another time and another time and you see how difficult it is because it's easy to think, well, what we want is flexibility but at the same time serious crimes deserve serious sentences. To go back to the Sentencing Reform Act and you don't want the disparity and these are working in particular things like some of the things we did this year. You could start out and have a general guideline because I came thinking, well, let's simplify the guidelines. It's not as easy as I thought it was going to be because if Congress has placed a number of different problems in one statute like the no electronic theft act, if you had one guideline for it all, it would work very unfairly and you have to use different principles because if you just have one catch all thing and then an upward or downward departure, you're going to get very wide disparities. So balancing is very fine tuned. I know that you're traveling all around the country all the time visiting circuit conferences and workshops and what do you hear the current view of judges about the guidelines? Do you just see that split between the new ones and the past or is there something that? It's not completely split. You know, there are new judges who come in having heard about the Sentencing Guidelines who may have been state court judges or magistrate judges or simply practicing attorneys in the criminal law field who have opinions. You know, in my new role now as director of the Federal Judicial Center, I see judges coming from every circuit, new judges and more experienced judges and it's interesting from my perspective as a district judge to look at it because when I first came on the district, went on the district court, the guidelines were new and quite controversial, but 12 years have passed since then and so now out of the 599 district judges serving, 75% of them came on the bench after the guidelines were in place and of the 159 circuit judges now serving, two-thirds of them came on the bench after. This makes me feel old. I know the feeling. So a lot has happened since November of 1987 and for the vast majority of judges now sitting, the guidelines are really all they know when it comes to federal sentencing and so there's I think a different approach to them and so we find in our new judges orientation program the judges are very aware of the fact that they need to understand the sentencing laws including the guidelines and that's one reason we have the commission, members of the commission staff attend all of our orientation programs and seminars for district judges to introduce them to these laws and we want to be sure we keep working with the commission so that the information we're passing on to these new judges is correct and up to date. The experienced judges on the other hand don't articulate the same need or desire frankly for more education but I think in general the major disagreement with judges about sentencing really doesn't have to do with the guidelines anymore. It really has to do with the mandatory minimums and the sense that I get from listening to judges around the country is that what judges would really like would be for Congress to stop enacting mandatory minimum laws and to reduce or reverse the ones that are now on the books but you know there are different judges with different points of view and some find something anomalous or in need of sentencing or changing that another judge is comfortable with and you know I think that the commission's continuing outreach to judges will help discuss these and address these issues for judges as they go along and you and I have had enough discussions about this off the record for me to know that both of us agree that the sentencing process has dramatically changed since the advent of the guidelines and you know whether one agrees with the sentencing guidelines or not for all district judges it's made a huge difference in the process of sentencing in simply the procedures that we have to go through and the way we have to address various issues but it's also made a big impact on probation officers. What do you hear and view as the way the role of the probation officers has changed due to the guidelines? Well it's quite dramatic I think when I went on the bench one of the things I noticed was you get quite a difference in approach between individual probation officers because there wasn't this kind of objective standard that they all were applying or the objective tests and most importantly the probation officer made a recommendation recommendation to the judge that was private to the judge and I had come from a state court system where they knew in fact it was given orally and the lawyers are right there and they could argue with the judge about it and I was very surprising to me then to go to the federal system and learn that that very key thing that every prosecutor defense lawyer would like to know was secret and only given to the judge and that's one of the things about the guideline system that isn't mentioned as much as I think it should be because it was a very salutary thing of having a system that all the probation officers are using applying in the same way and then the whatever the recommendation is or the calculus that they're doing under the guidelines whether they think there should be an upward departure it's right in that report the parties all have access to it they can there's system set up so they can respond and and the court then may have to have a hearing depending upon what the nature of the of the issue is but the probation officer is another aspect about how important they are is that I think a lot of us just had a tremendous feeling of unease this these things look so complicated I mean how were we gonna find the time to master the system and start applying it now after you work with it for a while it isn't as mysterious as it seemed at first but the probation officers as you know from your own experience for they're the ones that are on the front line they are the ones that are you know going forward to bringing in all the different offense characters it's a base events level and so on and everybody else is reacting from then on sure so they're they're really critical well they are they are and it's nice to have them acknowledged in their role in the process acknowledged your role is to determine the facts as they exist and I know that it's difficult and I know that oftentimes you're not going to be given the full report from the prosecution and the defense in regard to the facts but I think that ultimately is your responsibility it is not your responsibility necessarily to reflect the facts that have been argued to you by counsel your function should be the same as it was prior to 1987 to the extent that you should accurately reflect what the nature of the facts are though it may be unpopular though it may mean rejection of plea agreements because I think ultimately that's the responsibility of the judge to take your facts and then determine whether plea agreements are acceptable so I think that in some ways your role has been consistent over the years in some ways obviously different by way of interpretation of the guidelines getting back to judges district judges for a minute the way they view the guidelines the sense I have is that it's not the concept of guidelines that's objected to as much as the lack of discretion that judges are used to and treasure and and feel as a terribly integral part of their own role is there a way of giving the judges more discretion and yet preserving this concept of reducing unwarranted disparity in sentencing which I think everybody agrees is a worthy goal well you've used one of the magic buzzwords in that because the statute does talk about unwarranted disparity and of course that was one of the major things behind the passage of the Sentencing Reform Act was the data showed that there was a huge difference and it appeared unwarranted disparity but no situation is completely identical to the other as you know and so by using these objective standards in the guidelines you can apply it to the given situation and if it's appropriate the judge can depart either upward or downward and that's an integral part of the guidelines sometimes people think that departures are sort of forbidden by the guideline system and they aren't that's a it's an integral feature of it I don't think anyone in the commission here feels just automatically that departures are bad departures are part of the human system of sentencing people and every human being is different every situation is different and when you try and create uniform guidelines that apply throughout the country from Madison Wisconsin to a small town in Mississippi it's very difficult to think that departures are something to be frowned upon I think on the part of the commission we will study departure rates to determine if any type of fundamental problems exist if we see something unusual that might indicate that there is a systematic problem with the guidelines and that there might be a need to visit some area but barring that you should know that departures even nationwide are not unusual one of the history conflicts that we address this year was aberrant behavior and and we worked there to try to give judges nationally more opportunity to depart but inappropriate circumstances so we had to set out the area where that where they would have the discretion to depart and in some of the other things we did this year too you you have to be working at both of these together but all in all I think the more judges work with the guidelines the more they learn how they can apply it in a way that they find just is there a way for judges or others outside of the commission to assist and contribute to the work of the commission well yes we're very interested in in in judges viewpoints and we do publish everything in the federal register we're required to do that by law as I told you but judges aren't in the common practice of reading the federal register and one of the judges a friend of mine Judge Avere and Cohn had brought it to our attention that you know this was he was upset about one of these circuit conflicts that he hadn't heard he hadn't gotten because he wasn't reading the federal register and we are exploring we do have a website that we post everything on ourselves and we're going to we're exploring the possibility of of being able to put all of our notices on the on the jnet and and we want to communicate with all the judges to let them know about this but then we've got a hotline people can call when they have particular problems we have an area that people can call and we have publications or written responses that may assist in some things we also are very much into wanting to go out and visit you know it's it's unless we know what the problems people have working with the guidelines we can't possibly change it our our goal in knowing the problems is not to say bad judge you're not supposed to be doing that but rather maybe this is something we can bring to congress's attention and we can I mean the border problems yes is what I particularly have in mind and I'm thinking about that but we're going out to circuit conferences maybe not on quite as dramatic a level as you and workshops and we just met with all the judges in Boston when we were up there for a criminal law committee and they were they were wonderful they were so frank and and they they volunteered to be in any kind of pilot project we would like they had quite a variety of viewpoints and we want to do more of that good well I'm glad to hear and and I hope that people viewing this will understand that they don't have to wait though for you to go to them that there are websites and other ways of communicating ideas and seeking information from you about about your projects do you have any final thoughts that you'd like to share with us well you know you you asked about our our future my term as chair is under the statute is six years designed to keep this out of politics since it's longer than an elective cycle and you know that time goes by quickly I've told you some of the things that we want to do in not in 2002 it's going to be the 15th year anniversary of the guidelines and we are looking to doing a report that we would have come out that year looking at just how they're working and evaluation and we think that could be useful I've mentioned some of these studies that we want to do so that we can look for more ways we can get away from some of these mandatory minimum you know tight boxes the U.S. Commission on Civil Rights has done a study on Native American problems and one part of it is related to criminal law and they have asked the commission to study the impact of the guidelines on Native Americans and in the course of this term working on the sexual predators we discovered that some of the possibilities we were looking at for enhancements would work particularly severely on Native Americans because some reservations have all of the what would normally be state crimes prosecuted by the federal government so instead of getting the standard in South Dakota for assault for example you all of a sudden have the federal guidelines coming in which have a much more severe impact and so we want to do some research there and see if we can there are a lot of areas that we want to work on and we hope everybody will be understanding that we can't do it overnight have some patience with us and we hope we get our budget so we can do all this I hope that for you too and for us as well and I think what you've accomplished so far and what you have planned in the works is very interesting and impressive and I'll look forward to watching for it let me comment too on how pleased I am at the collaborative efforts of our two agencies um you know Diana you and I've been friends for a long time I met you right after I went on the bench and so it's really special for me both personally and and professionally to be able to work with you I feel that way too in this way and I wanted to mention in particular our sentencing policy institute which of course is a collaborative effort and in which the FJC takes the lead but is certainly joined in uh in consultation with the judicial conferences criminal law committee and the sentencing commission and the bureau of prisons and the administrative office of the courts and it's a way of bringing together judges and probation officers and prosecutors and defense lawyers from all over the country to exchange perspectives and discuss different points of view on these important sentencing issues and I think the results of of this institute gives a lot of assistance both to the sentencing commission I hope into the criminal law committee and I guess we're now in our final planning phase for the next institute which is going to be in Phoenix Arizona in September the 10th to the 13th and then of course we have our broadcasts like this one which has been a great deal of fun and uh but we've also done some others we did one earlier this year on restitution and one on departures and I guess we have another one planned together uh for to be aired in November of this year November 16th I think and it's all part of a continuing series and process to help judges and keep them informed and probation officers and others interested in these developments so I look forward to more conversations with you personally off the record and on the record and in the meantime I thank you very much for joining us today for our pleasure we hope you found this conversation informative if you'd like more information about the new commissioners and their initiatives check out the sentencing commission's website at www.ussc.gov and if you have questions about guideline application you can always call the sentencing commission's helpline at<PHONE_NUMBER> if you have any comments or suggestions for future FJTN programs be sure to fill out and return the program evaluations completing the rosters will also help us plan future broadcasts both forms can be found on the FJC's DCN site jnet.fjc.dcn as Judge Smith noted our next joint FJTN production will air live on November 16 and will focus on relevant conduct look for details in the next FJTN bulletin we'll leave you now with some final comments from ex-officio commissioner Michael Gaines at the guideline seminar thank you for watching from where I sit as an ex-officio member of the sentencing commission I have an opportunity to observe and what I observe with this group of folks up here is an exceptionally well qualified commission I'm not necessarily an expert to comment on that and I would certainly not say anything to disparage the former commissions but I think the Murphy commission is going to be one that you will be quite pleased with you've heard them this morning they're very bright folks they know what they're doing they know the guidelines they use the guidelines and I think as you've heard from some of their comments they're truly interested in those of you who use the guidelines one of the things that I've been most impressed with is they're reaching out for input to the public through public meetings public hearings that the commission has held through the criminal law committee through the practitioners advisory group probation officers group they have truly reached out for input and I think that's very important