December 1, 2004
by Pat Nolan

A pair of sentences handed down in federal court on the same day point out the injustice and absurdity of current federal sentencing policies. In one case, the judge gave a 22 year sentence to a man convicted of aggravated second degree murder for beating an elderly woman to death with a log. Two hours later the same judge handed down a 55 year sentence to a man who sold marijuana to an undercover cop.

This sentence was so extreme because the defendant had a gun strapped to his ankle during the drug sale. He didn't use the gun. In fact, he didn't show it to anyone. Merely having the gun on his person triggered the 55 year sentence. The judge strongly denounced this result, but his hands were tied. Federal mandatory minimum sentences dictated this result. There are no exceptions to the federal rules.

Lest anyone think that the judge was "soft of crime," he was appointed by the current President Bush after serving as a law clerk to Justice Antonin Scalia.

The issue of federal sentencing policies is now squarely before the Supreme Court. On the very first day of this term, the Court heard oral arguments in two cases that may well eliminate sentencing guidelines at the state and federal levels. The two cases, United States v. Fanfan and United States v. Booker, follow on the heels of a decision handed down in June, Blakely v. Washington, 124 S.Ct 2531 (2004), in which the Supreme Court invalidated the State of Washington's sentencing guidelines because they allowed a sentencing judge to weigh facts not presented to the jury, in violation of a defendant's Sixth Amendment right to trial by jury. The Court ruled that any factor that increases a criminal sentence under the guidelines - other than a prior conviction - must be admitted by a defendant in a plea bargain or proved to a jury beyond a reasonable doubt.

Sentencing guidelines were developed to avoid disparate sentences for criminals convicted of similar crimes. In the federal system, and as in the Washington guidelines invalidated in Blakely, the prosecutor can ask the judge to increase a defendant's sentence based on conduct that was never charged or presented to the jury - and even conduct for which the defendant was acquitted by the jury!

I know of such a case. I was incarcerated with a businessman who had been charged with several counts of fraud, plus conspiracy to commit fraud. The jury acquitted him on every count of fraud, but convicted him of conspiracy to commit the very fraud they had just acquitted him of. Then, the judge imposed a sentence based not only on the single count on which he had been convicted, but added years to his sentence for the charges that jury had acquitted him of!

Add the inflexibility of mandatory minimums to the constitutional problems of sentencing guidelines and you have the perfect storm for the courts. Watching a federal judge attempt to figure out the arcane charts for sentencing is like watching a game of baccarat. It is purely a mechanical process; turn over the cards and you win or lose - mostly lose. The guidelines are a ratchet that moves most cases in one direction: longer and longer prison terms.

Justice Kennedy put it well when he said, "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In all too many cases, mandatory minimum sentences are unjust." By limiting a judge's ability to consider the actual facts of a case, our current sentencing policies send a small time marijuana dealer to prison for longer than we lock up a man who beat an elderly woman to death. That is not justice.

For Further Reading and Information

. US Sentencing Guide: Sentencing policies in general http://msg1svc.net/servlet/Gateway?p=pfm&u=8142&et=T&s=246672.

. US Sentencing Guide: Blakely case http://msg1svc.net/servlet/Gateway?p=pfm&u=8143&et=T&s=246672.

. Vera Institute report on Practical Implications for State Sentencing Systems of Blakely http://msg1svc.net/servlet/Gateway?p=pfm&u=8144&et=T&s=246672.

. Vera Institute report on Legal Implications for State Sentencing Systems of Blakely http://msg1svc.net/servlet/Gateway?p=pfm&u=8145&et=T&s=246672.

. Rand Corporation Report: Mandatory Minimum Sentences: Throwing Away the Key or the Taxpayer's Money? http://msg1svc.net/servlet/Gateway?p=pfm&u=8146&et=T&s=246672.

. High Court Justice Calls Sentences Too Severe, Too Long (San Francisco Chronicle, August 10, 2004, republished in Common Dreams) http://msg1svc.net/servlet/Gateway?p=pfm&u=8147&et=T&s=246672.

. Justice Anthony M. Kennedy Address to ABA Regarding Sentencing http://msg1svc.net/servlet/Gateway?p=pfm&u=8148&et=T&s=246672.

. American Bar Association: Justice Kennedy Commission Report with Recommendations (PDF) http://msg1svc.net/servlet/Gateway?p=pfm&u=8149&et=T&s=246672.

. Sentencing-Guideline Study Finds Continuing Disparities (New York Times, November 27, 2004, free registration required) http://msg1svc.net/servlet/Gateway?p=pfm&u=8150&et=T&s=246672.

. Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform http://msg1svc.net/servlet/Gateway?p=pfm&u=8151&et=T&s=246672.

Prison Fellowship Ministries
Pat Nolan is President of the Justice Fellowship.