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February 2, 2005 - (US Web)

A Crack in the Wall

Judges, Attorneys, Ponder Ruling On Prison Sentences

By Polly Keary

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Blakely News Archive

When they told Freddie Booker that anything he said could be used against him, he wished he had believed it. A jury in federal court found him guilty of possession of three ounces of crack, enough to fill an Altoids tin. That was bad enough; it wasn't the 51-year old Chicago man's first waltz, and mandatory minimum sentencing laws guaranteed him 21 years for the offense.

But a cop said that Booker had told him that previously he'd sold about a pound. (Police often tell you upon your arrest that they are your "friend," that "you can help yourself out" by giving up information about your activities and that if you insist on your Miranda rights they will arrest a loved one or get you a longer sentence.)

The prosecutor never proved to a jury that Booker had sold a pound; it wasn't necessary. A jury needs to be convinced beyond a reasonable doubt. A judge just needed to be convinced by a preponderance of the evidence, a lower standard of proof. So at Booker's sentencing hearing, the prosecutor told the judge what the cop had said.

The judge, given that information, had no choice under federal sentencing guidelines but to sentence Booker for the crime of selling a pound, not three ounces. Booker got 30 years.

Then last summer, the Supreme Court struck down Washington state's sentencing guidelines, ruling it a violation of the Sixth Amendment to sentence a defendant based on evidence that a jury never found him guilty of. Booker appealed. On January 12 he won, and the U.S. Supreme Court struck down federal sentencing guidelines - then, in an odd near-reversal, allowed so long as they were "advisory."

As courts all over the country scramble to figure out what that means, Washington State's federal legal community is adjusting with an aplomb that may result from having been an oasis of reason in a 17-year storm of increasingly hysterical sentencing.

On one thing, everyone agrees: this ruling gives power back to judges.

"Generally speaking, throughout the country, judges feel it's a good decision," says Tom Hillier, head of the Federal Defender's Office in Seattle. "Judges like discretion."

They had precious little discretion under the guidelines. In most cases, judges were reduced to the role of clerks with rubber stamps, formally handing down sentences already determined by prosecutors.

Congress tied the hands of judges in 1987 in order to address the very real problem of disparity in sentencing. With no formal guidelines, racism could, and often did, result in harsher sentences for non-white people. Although some, including Jeff Sullivan, head of the criminal division of the U.S. Attorney's Office in Seattle, say they were successful in that regard, others disagree.

"The guidelines have not eliminated disparity," Hillier says, calling them an "unmitigated disaster." "Disparity just became present in a different form, now it's prosecutorial disparity."

U.S. attorneys have a 98 percent conviction rate in the federal courts, because they choose what to charge the defendant with - so terrifying her with the possibility of decades in prison should she lose that she virtually always accepts a plea deal. The prosecutor, of course, also decides what deal to offer.

Thus, the fate of the defendant rested on the reasonableness of the prosecutor. Some wielded their power with an inquisitor's zeal. In one headline-grabbing 2004 case in Utah, for example, 25-year-old Weldon Angelos got a 55-year sentence for selling 20 ounces of pot because a search of his house yielded three guns, each of which "enhanced" his sentence dramatically.

Washington state's prosecutors have been more reasonable, which is why the ruling may not have a pronounced effect here.

"We're very fortunate to have a U.S. Attorney, John McKay, who is very professional," says Western Washington district chief judge Robert Lasnik.

"Prosecutors here traditionally have tried to work with the defense," Hillier agrees. Angelos' case "wouldn't have happened here."

Because judges are free to go a little easier on some defendants than they were before, the Supreme Court ruling has also given a little more bargaining power to defense attorneys. "Under the former sentencing regime, the judge was constrained from considering the character of the defendant," says Hillier.

"Now we can approach the prosecutor with a client with mental health issues or an abusive childhood and say, 'Let's work something out.'"

However, some defendants may be worse off.

"I'm not convinced it's going to be just downward departures [sentence reductions]," Sullivan says. In identity theft cases, for example, sentences have been based on financial damage. "The damage done to someone's life may be considerable, but the financial damage not as much. We may be able to get a longer sentence."

Judges will still be forced to give out sentences that many feel are overly severe, though. Mandatory minimum sentences, the least a judge is allowed to impose for a given crime, are still in place.

James Doherty of Kettle Falls, Wash., found out the hard way about those. He and seven friends grew 1,000 marijuana plants in a field near Colville, Wash. Although only 100 of them were his, because of conspiracy laws, each defendant was held accountable for all 1,000. Mandatory minimum: 10 years.

Doherty told the mother of his four children not to wait for him. He hopscotched from prison to prison throughout the United States, making visiting nearly impossible. During that time, he found out that drug dealers are punished more harshly than many violent criminals.

"You watch murderers and rapists and thieves come in and leave, and you're still there," he says.

Doherty was released three months ago, and hopes that the minimum sentencing structure is eventually struck down as well.

"I wish I could have stood in front of the judge and told him my side," says Doherty. "I know he wouldn't have given me 10 years."

As drastic and drug-war obsessed as the minimums may be - selling less than two ounces of meth carries the same penalty for a first-time offender as does providing material aid to terrorists - many fear that Congress may respond to the Supreme Court ruling by imposing more mandatory minimums.

"Right now as we speak, there are people in Congress threatening more regressive policy," Hillier says.

"We're trying to develop some energy around it, start some letter-writing campaigns," says Chuck Armsbury of the November Coalition, an organization based in Colville devoted to greater fairness in drug sentencing. "We don't know what is going to happen."

"Congress has the right to put in mandatory minimums," says Lasnik. "We don't think it's good policy."

Capital Offenses

Federal sentencing guidelines have been a factor in the growth of the nation's prison-industrial complex.

Since mandatory minimums and sentencing guidelines were put in place, the federal inmate population has increased seven-fold, from 24,000 to 181,000.

It has taken 65 new prisons to accommodate the influx.

Although some say the harsh sentences are responsible for a drop in violent crime, 77 percent of federal inmates are serving time for nonviolent crimes.

Housing only the nonviolent offenders costs $1.7 billion a year. Each inmate requires the entire tax burden of four average American families every year.

All told, including the cost of administration and prosecution, the federal justice system spent $19 billion on the drug war last year, or $600 every second.

The U.S. incarcerates more people per capita than any other country in the world.

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