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Monday, Sep 1, 2003 - Arkansas Democrat-Gazette

Judges In A Stew On Federal Sentences

Guidelines Seen As Too Rigid, Unfair

U.S. District Judge Stephen M. Reasoner recently shook his head from the bench, looked out across his Little Rock courtroom and asked a question more and more federal judges are contemplating: "Why am I here?"

Little Rock attorney John Wesley Hall Jr. recalled the judge uttering those words in frustration at a sentencing hearing last month for one of Hall's clients, who had been convicted of a drug charge.

Reasoner was reacting to the rigid mandates of federal sentencing guidelines, which judges must follow except in rare circumstances. While the guidelines are designed to give judges some leeway within a mathematically deduced penalty range, in this case the range was narrow: 120 to 121 months.

A federal judge can "depart" upward or downward from the guidelines -- but only if his reasons fit into a designated category of unusual circumstances and the sentence remains within a wider range established by federal statutes.

If the judge's reasons for wanting to tinker with the guideline range do not fit the criteria, the rumble from his bench likely will echo a bigger tremor quaking just under the surface of federal courtrooms across the country.

Fueled by a July 28 directive that U.S. Attorney General John Ashcroft issued to all U.S. attorneys, and by a section of law that preceded it, some judges hope the tremors will soon break out in the right places and lead to new ground being broken in the nation's sentencing laws.

"It's hard to find a federal judge who finds the sentencing guidelines are working well," said U.S. District Judge G. Thomas Eisele, a senior judge who has presided in the Eastern District of Arkansas for 33 years. "It's a system I've said is not worthy of this country."

Eisele and other federal judges complain that the guidelines, first implemented in 1987 and since amended by various congressional mandates to increase minimum drug sentences, are undermining judicial independence -- the discretion to tailor a sentence to the case at hand.

Judges lament that the system, originally designed to reduce disparity in sentencing, in reality is unfair to defendants, victims and society as a whole. The judges say the guidelines needlessly fill the nation's prisons with nonviolent offenders at taxpayer expense while more dangerous offenders too often get off easy.

According to the U.S. Bureau of Prisons, more than 54 percent of the nation's approximately 128,090 sentenced federal prisoners in 2002 -- or 70,000 inmates -- were incarcerated on drug offenses, some so minor that the offender sometimes would receive probation or less in some state courts.

"The time has come for major reform in the system," Senior U.S. Circuit Judge Myron Bright of Fargo, N.D., a 35-year veteran of the 8th U.S. Circuit Court of Appeals in St. Louis, wrote in a July 18 opinion that he concluded with the words, "Is anyone out there listening?"

Defense attorneys, upset by judicial restrictions that make it harder for their clients to get downward departures -- a sentence below the guideline range -- also are in an uproar.

"James Madison is rolling in his grave," Hall, secretary of the National Association of Criminal Defense Lawyers, said of the nation's fourth president, known as the father of the U.S. Constitution and its Bill of Rights. "The guidelines are a farce."

Blake Hendrix, another Little Rock lawyer who frequently practices in federal court, said the discontent has become so pervasive that he would not be surprised by a "general revolt."

"You can only hamstring the federal judiciary for so long," Hendrix said. "I expect a titanic battle between the Justice Department and the judiciary. It seems it's brewing."

"There definitely is a movement" to lessen the restrictions on judges that are embedded in the guidelines, said Carmen Hernandez, an attorney adviser at the Administrative Office of the U.S. Courts in Washington. Hernandez, who keeps defense attorneys abreast of changes to the guidelines, is widely regarded as a national expert on the legal provisions that she and Eisele say are misnamed "guidelines" because they actually are mandates.

Protect Act

The latest policy change furthering the furor stems from the PROTECT Act, signed into law by President Bush on April 30. The act is best known for its "Amber Alert" provision, which established a nationwide warning system for kidnapped children.

The act's primary and popular goal was to strengthen laws concerning crimes against children -- hence its acronym, which stands for Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today. Tucked into it was a section dubbed the "Feeney Amendment." Sponsored by Sen. Tom Feeney, R-Fla., it calls for tightening provisions of the guidelines concerning all federal crimes to restrict downward departures and for tracking which federal judges frequently hand them out.

The amendment, drafted by U.S. Department of Justice staff, directed Ashcroft to implement one of two policies by July 30 to dissuade judges from giving downward departures. Ashcroft in turn directed the nation's federal prosecutors to fight departures except in rare circumstances and to keep track of downward departures that judges give over prosecutors' objections.

Ashcroft has said it was the "less onerous" of the two policy choices, the other one requiring the reporting of every departure to the Senate and House judiciary committees.

Still, judges see the change as infringing deeper on their independence and their ability to impose reasonable and just sentences. Eisele calls the Feeney Amendment "an encroachment on the separation of powers," and numerous other judges agree.

"An already difficult situation has been made worse by Congress's recent passage of certain provisions in what is called the PROTECT Act of 2003," Bright wrote in his July 18 opinion. Acknowledging his role is not to criticize Congress, Bright said nonetheless, "This enactment will exacerbate the problems with the guidelines by making it even more difficult for district judges to do justice under the law as circumstances warrant."

Bright quoted U.S. District Judge John S. Martin Jr. of Manhattan, who resigned in June after 13 years, citing the increasing limitations on judicial discretion.

"I no longer want to be a part of our unjust criminal justice system," Martin said in a June 24 editorial in The New York Times.

The new law gives the U.S. Sentencing Commission, an independent agency headed by another 8th Circuit judge, Diana Murphy of Minneapolis, until Oct. 30 to respond to the Feeney Amendment.

The commission was created to draw up the guidelines in response to Congress' Sentencing Reform Act of 1984, the federal response to public outcry for stronger and equal punishment for criminals.

"Efforts to repeal some parts of the Feeney Amendment" already are under way, Hall said.

"It's taking all the reasons to depart downward away," Hall said of the legislation, "and Congress doesn't have the balls to stand up" and resist.

Addressing Disparities

Shortly after the guidelines became the law of the land during the Reagan administration in the 1980s, Eisele ruled them unconstitutional. His decision was upheld by the 8th Circuit, which presides over appeals in Arkansas and six other states. But ultimately the U.S. Supreme Court, addressing similar rulings across the country, declared the guidelines constitutional in 1989.

Their original purpose was noble: to standardize sentences for similar crimes committed across the country. The guidelines sought to prevent such disparities as a cocaine dealer in California getting probation while a dealer in Arkansas selling the same amount got 30 years.

But the guidelines, some argue, often have had the opposite effect. "There's more disparity now," said Eisele, who like Reasoner is a Republican appointee. "The main problem with the guidelines is they put sentencing decisions on everyone but the judges."

Agreeing strenuously is U.S. District Judge Bill Wilson Jr., a Democratic appointee with 10 years' experience.

"The rigid guidelines that they have now have not led to uniform sentences," Wilson said. "The guidelines and mandatory minimums put the vast majority of discretion in the hands of the prosecution. ... I'm not against a reasonable amount of prosecutorial discretion, but there's an overload of it now."

Both judges said that police officers on the street know that if they want to put someone away for at least 10 years, they need to delay an arrest until the person is in possession of a high enough quantity of drugs to trigger a "mandatory minimum" sentence. Furthermore, they said, the mandatory minimums discourage trials and encourage unjust plea agreements fashioned by federal prosecutors.

Bud Cummins, U.S. attorney for the Eastern District of Arkansas, acknowledged that roughly 90 percent of all cases in the district that includes Little Rock are disposed of by plea agreement. "I've seen numbers between 87 and 92 percent," Cummins said. "I think that's pretty consistent with figures nationwide."

But this process can go awry, as it did recently in a case before Wilson.

Of three men charged in a drug conspiracy, the two considered the lesser players -- neither had a criminal history -- went to trial and were convicted of conspiracy, which has a mandatory 10-year minimum sentence. The third man, whom prosecutors acknowledged was the mastermind of the conspiracy, pleaded guilty when prosecutors agreed to dismiss the conspiracy charge and recharge him with a lesser crime, misprision of a felony.

Sentencing guidelines recommended zero to six months in prison for the misprision offense, or failing to report knowledge of another crime. Wilson, convinced partly by trial testimony that the third man was the mastermind, departed upward from the guidelines in an attempt to, as he said, be more just. But his efforts were limited by federal statutes that set the maximum sentence for the misprision offense at three years. The man's attorneys are appealing the three-year sentence, saying that their client was not convicted of conspiracy and that Wilson did not offer a valid enough reason under federal law to depart from the guidelines.

Wilson later wrote in an order about the case, "Before the guidelines and mandatory minimums ... I could have gone a long way toward correcting what I believe to be a serious inequity."

The judge said that he does "not advocate going back to the old days, when a judge had unfettered discretion," but "I think some guidelines that are true guidelines, with a right for both sides to appeal, would be in order."

Cummins said he is "certainly comfortable" with the guidelines because their aim is uniformity and fairness. Without them, "in one district, you may have a lenient approach to crime while 100 miles away, a judge maxes out everybody. That doesn't seem to be a just system, and it may inject too much of a judge's personal prejudice."

Cummins, appointed by Bush, said he believes the guideline ranges "still give judges a lot of discretion." But, he said, "I understand the judges' viewpoint. ... We don't want a robot sentencing people."

Wilson said Cummins' office generally acts reasonably, but "I don't think the Bill of Rights was bottomed on the idea of a goodguy prosecutor." He said judges must have authority to intercede when bad deals are made.

"A plea bargain done right is a good thing for the justice system," said the former criminal defense attorney, "but the guidelines have thrown them out of kilter."

'Soft' on Justice

U.S. Rep. Vic Snyder, D-Ark., a lawyer on the House Judiciary Committee, said he opposed the Feeney Amendment because it's "just another example of legislators thinking they're fighting crime by somehow tying the hands of judges, and I don't think that's the way to go."

Still, he said he voted for the final bill that became the PROTECT Act because it contained "a lot of good stuff."

"If you wait to vote for something that has everything in it, you may never vote for anything," Snyder said.

"It's a complex issue. It's one of those issues that when you first look at it, you think, 'How can you be against being soft on criminals?' But what you're being soft on is justice. Sometimes justice requires long sentences; sometimes it requires sentences that aren't so long."

Rep. John Boozman, the only Republican member of Arkansas' congressional delegation, said he remembers the Feeney Amendment as "a noncontroversial part of a big bill that did a lot to protect children."

But he said judges have raised some legitimate concerns. "What I will be doing is talking to some of our U.S. attorneys and judges," he said. "I feel this issue needs to be followed up on."

A member of the House Speaker's Drug-Free America Task Force, Boozman said he would like the panel to take a closer look at mandatory minimums and their effect on drug crimes.

"I think it really is a deterrent to drug use, but certainly the punishment needs to fit the crime," he said.

Meanwhile, at least two U.S. Supreme Court justices, Anthony Kennedy and Chief Justice William Rehnquist, recently have spoken unfavorably about the sentencing guidelines and the effect of the Feeney Amendment.

"Our resources are misspent, our punishments too severe, our sentences too long," Rehnquist told the annual meeting of the American Bar Association in San Francisco.

Rehnquist has said the Feeney Amendment will "seriously impair the ability of the courts to impose just and responsible sentences," according to the Wall Street Journal.

"Rehnquist's remarks indicate basically the position of the third branch [of government]," Eisele said.

He showed a reporter a 145-page report published April 11 by The American Law Institute, an 80-year-old organization of about 3,000 judges, lawyers and law teachers with a mission of trying to improve the law.

The report, which makes suggestions for state sentencing reforms, criticizes "the ungainly federal machinery" known as the guidelines and "the labyrinthine arithmetic of federal law."

"The total process is a dizzying progression of calculations that make it hard to remember that the interests of human beings turn on the outcome," the report says, calling for simpler rules.

If states follow the institute's suggestions, Eisele said, "It may be they will lead us out of this dismal swamp."

Then "maybe this commotion occasioned by the Feeney Amendment will bring the public's attention to what's wrong with the guidelines."

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