October 1, 2007 - Des Moines Register (IA) Iowan's Case Before High Court Highlights Sentencing Shortcomings By Rox Laird, Register editorial writer.

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The U.S. Supreme Court begins its 2008 term this week. Tomorrow, the justices will hear arguments in an Iowa case that could affect criminal sentences in every federal courtroom in America.

The outcome of Gall v. the United States will have a particularly profound impact on Brian Gall, a native of Eldridge and graduate of the University of Iowa who made what he freely admits was a poor choice in 2000 when, as a 21-year-old student, he got involved with a drug conspiracy as a low-level dealer of so-called "ecstasy" tablets.

After about seven months, he parted company with the drug dealers, quit selling the drug and turned his life around. He finished college and started a construction business in Arizona. Alas, his past came back to haunt him two years later when federal agents showed up at his door. In 2004, Gall pleaded guilty in U.S. District Court in Des Moines to conspiracy to distribute a controlled substance.

At that point, Gall's story took the first of several unusual turns that would put his case before the Supreme Court and squarely in the cross hairs of a national debate among federal judges, prosecutors and defense lawyers over criminal-sentencing laws.

When a case before the court last year on this issue was dismissed because the defendant was killed, the court looked through the pile of pending appeals for another presenting the same question. It picked Gall's.

Prison v. Probation

Gall's case fit the bill because it is a prime example of how the federal-sentencing process has become broken.

Based on the federal criminal-sentencing guidelines, the recommended sentence for Gall was a prison term of somewhere between 30 and 37 months. U.S. District Judge Robert Pratt instead sentenced Gall to probation based on the fact that Gall's brief venture into drug sales was an aberration in an otherwise lawful life and that prison would serve no purpose.

"Indeed," Pratt wrote, "a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing."

The U.S. Court of Appeals for the 8th Circuit based in St. Louis, Mo., reversed Pratt and sent the case back for resentencing with the clear message: Stick within the guidelines and send Gall to prison.

Among the thousands of criminal prosecutions that flow through the federal courts every year, this case may seem ordinary, but it presents a critical constitutional problem that has been vexing the federal courts ever since Congress created the U.S. Sentencing Guidelines Commission in 1984. The commission's guidelines serve to substitute human instincts of courtroom judges with a mathematical formula that spits out criminal sentences based on a range of enhancing and mitigating factors.

Two years ago, the U.S. Supreme Court ruled that mandatory sentencing guidelines violated defendants' Sixth Amendment right to a jury trial, but said they could be considered an optional guide among a variety of sentencing factors. Many circuit appeals courts, however, have since established a rigorous test for sentences that fall below the guidelines, which critics say effectively made the guidelines mandatory - and unconstitutional.

The Human Factor

This all may seem dryly technical, except that it affects real people like Brian Gall, who made a mistake but is now leading a successful life that would surely be wrecked, perhaps irreversibly so, by a prison record. It's the difference between looking at a case through the eyes of a judge who has heard the testimony of dozens of people who say Gall is model citizen and worker rather than through the faceless mathematical sentencing formula that does not, and cannot, account for the inestimable human variations in every case.

The sentencing guidelines were intended to bring uniformity to federal criminal sentences across the nation. That is a laudable goal, but there is little evidence they have achieved anything other than being uniformly harsh.

Some federal judges have been in near open revolt over the straitjacketing effect of the guidelines, saying "mechanical sentence computation" reduces judges to "automatons" and "rubber-stamp bureaucrats." Some believe the federal courts have been transformed to little more than treadmills sending people to prison, with judges unable to do what they were hired to do: Make judgments based on unique facts in each case.

The Supreme Court has made a hash of federal-sentencing law over the past 20 years. In the case it will hear tomorrow, it has the opportunity to give judges, lawyers and defendants clear guidance. It is long overdue.

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