Tuesday, December 28, 2004

Federal Sentencing Guidelines

The Wall Street Journal has an excellent article, as ususal, (I’m a big WSJ news fan, I can stand their editorial page, but I have often said for news it is by far the best paper currently printed) regarding the national confusion among federal judges over the constitutionality of the federal sentencing guidelines. Since the Court last term decided Blakely v. Washington, there has been disagreements both within the Federal Circuit Courts and even within the Federal District Courts as to how to proceed with sentencing criminal defendants pending the outcome in the soon to be decided Booker and Fanfan cases.

The article (the WSJ doesn’t grant free access to their web site, if you have Factiva you can get it there, but if not I’m afraid you have to buy the paper. If anyone has the link please let me know and I’ll post it) highlights some of the disparity that has resulted from the Circuit split over whether the reasoning in Blakely applies to the federal guidelines. While that is an interesting topic, I’m fairly certain that the Court will apply the Blakely reasoning, however, the open question, in my mind, is whether the Court will find the entire Sentencing Reform Act of 1984, which created the guidelines, unconstitutional, or will the Court simply find a way to separate out the guidelines from the statute, thereby preserving many of the 1984 reforms (including, for example, the end to parole in federal sentencing). Assuming the Court preserves the statute, the WSJ article, I think highlighted one of the many problems with the federal sentencing procedure, namely, that like tax policy, a fair amount of social policy has entered into criminal sentencing, which is skewing the results.

For example, the WSJ article details two cases that highlight one of the many problems I see. In the first case the defendant was accused of and convicted of "bilking banks and investors by presenting false financial figures." In other words, fraud, or whatever the technical banking related, white collar crime word is for intentionally misleading people into believing something that isn’t true. Now, granted fraud and other white collar financial crimes are notoriously complicated and difficult for juries and judges to sort out, but that being said, the bottom line was that the District Judge determined that based on the juries findings the defendant received a sentence of only 6 months not the more than 8 years that the prosecutors were requesting. Let’s not, however, dwell on the actual sentence received, but rather on the possible sentence of 8 years. 8 years for high level fraud, costing individuals and investors probably (I don’t have the facts) hundreds of thousand, if not millions of dollars. 8 years, sufficient? Maybe, but regardless of what you think the time indicates a policy decision by members of Congress and the members of the Sentencing Commission who write the guidelines.

Now contrast that with this second case. Again, according to the WSJ, a 19 year old kid who pled guilty to participating in a drug distribution scheme, and according to judge played only a minor role in the overall scheme (he was supposed to simply package the drugs for street sale, he played no role in actually procuring the marijuana or later attempting to sell it) was sentenced to 3 years 10 months, the "low end" of the guidelines. While the article doesn’t specify what the requested sentence was, I think the dichotomy is pretty clear. Nearly 4 years for pot (probably the minimum) and only 8 years (probably the maximum) for high level investor fraud. Interesting, at least to me. I know, understand, and fully support the "war on drugs," but come on, a kid makes a mistake, get involved with the wrong people and gets nearly 4 years in federal prison, while the person engaged in a complex, multi-party, financial fraud scheme gets a recommended sentence of only 8 years (remember he actually only got 6 months). There is no question that we have made the policy decision to effect tougher, significantly tougher penalties for minor drug offenses than we have imposed on financial crimes.

All this is by way of saying that trying to effect social change through the sentencing system isn’t working. Just like redistributing wealth and income via the tax code isn’t working. All the mandatory minimums and enhanced sentences for drug users isn’t acting as a deterrent, and there appears to be rise in the amount of fraud and white collar crime being investigated and prevented. While the latter may be explained by a renewed effort in a post Enron/WorldCom world, that theory doesn’t account for all of the disparities. Regardless of where the Court comes down on Blakely, it is clear to me and many others that there needs to be some reform of the federal sentencing guidelines. By all means, punish criminals, but the punishment should in some way fit the severity of the crime. Drugs are bad, but are they twice, or in some cases 10 times, as bad as some white collar crimes, or violent crimes? I personally don’t think so. Recently, a criminal in Utah was sentenced to approximately 85 years on charges of possession of marijuana and carrying a firearm during the commission of a crime. The judge, Judge Cassell, no fan of criminals or criminal’s rights, was constrained by the guidelines to impose such a harsh sentence. The Judge pointed out, correctly, in my opinion, that the sentence he was required to impose was incredibly more harsh than the one he had imposed earlier that day on the double rapist and therefore, presented some potential 8th Amendment issues. More to the point, this 25 year old drug dealer received more time than a convicted terrorist may be eligible to receive. Are guns and drugs bad? Absolutely. Should people who are caught be punished? Of course. Should they get 85 years? I don’t think so. Should they get more time than perpetrators of violent crimes, especially violent sexual crimes? No.

Fight the drug war in the schools, neighborhoods, parks and streets where it can be won, not in the courts and prisons where it has already been lost. Reform the sentencing guidelines, reduce mandatory minimums for drugs and increase them for violent crimes and permit judges to use their ingenuity and creativity in imposing sentences that actually may act as a deterrent. We may all like the results.


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