Determinate Sentencing's Quandary

By the time law students and criminal justice majors are hitting the books, and finding these summertime messages about 'real offense guideline sentencing,' exploring the way that the federal government's broad application of uncharged, even acquitted conduct can ratchet up a sentence, complete with stale criminal histories, tales of informants, etc and all — I'll be sleeping under the stars and kayaking in a nearby river.

I want to leave readers with something meaty in my absence. Ordered from public archives, the LEAA Library, a former prisoner volunteered to scan it, and we've made it available on our website. It's called "...WE ARE THE LIVING PROOF..." The Justice Model for Corrections and was authored by David Fogel in 1975. Dr. David Fogel was an Illinois Correctional Official, one of a successive few corrections officials to promote administrative justice models, now called 'determinate sentencing' in reality, but called 'Sentencing Guidelines' in practice.

WE ARE THE LIVING PROOF is 328 pages, and 33 years old, but crucial academic history as to how sentencing revolutionized in 1984. The LEAA library, or collection entire is likely significant because as anti-prison abolitionists of the day warned — LEAA, the Law Enforcement Assistance Administration was to police and prison officials, what the pentagon is to the military today. Yet the author, David Fogel was a self-proclaimed 'fortress prison abolitionist' -- and the plot thickened for me because I'd long had a hunch that 'progressive' ideas went real bad, and having a brother 19 years down on a guideline (wink, wink) sentence of 27 federal years, I read Fogel's work with far too much fascination. And reading it, I kept thinking about all the prisoners who've wondered who cooked up parts of this mess we are in, and legal students, and advocates might appreciate the thought and sentiment behind what has become an entirely revolutionized federal sentencing system.

In some fairness to Fogel, he warned that all of his ideas would have to be implemented, and if piecemeal adoption took place -- would only create what is easily illustrated in alarming ease -- the United States has a "carceral crisis,' of epic proportions.



One of Fogels goals was to abolish parole and have fixed sentencing -- that this system would respect the keepers and convicts. Writing of and to his critics, he wrote long into his manuscript:

Even assuming the relevancy of our claim that the rationalization of parole along lines of a punishment-deterrence-justice model could bring more safety, sanity and fairness to prison life, some have argued: "Why mess with the system?" Some critics reason that even if the present anomie in sentencing and parole appears to be unjust, most prisoners average only a two year plus stay; and the more the appearance of unfairness is exposed, the more tightening up will be legislated. This might, in their view, bring more convicts into the system and keep them longer. Therefore, modernization may contain the seed of an unintended consequence which could operate against the cause of lower numbers of prisoners with relatively shorter average stays as compared to actual sentences. Hence the rationale becomes: "leave it alone, you can't really affect the onerousness of prison life anyhow, and you may open up a Pandora's Box for conservative legislators which will produce draconian prison stays (actual) rather than merely the semblance of long sentences as we have now." This is not unattractive. It is even a bit seductive. But it is not convincing on several grounds.

Fogel goes on to explain that high levels of imprisonment would cost too much, and legislators who promoted harsh sentencing would easily be voted out of office. Yeah, this smart man -- esteemed and highly regarded in his field, could never have been more wrong, and critics more prophetic.

This old writing, in support of fixed, determinate, mandatory sentencing, called guides or otherwise should prove interesting for lots of people intent on spending time in their futures creating new federal criminal justice laws and policing policy.



When we ask for returning parole, or forms of earned, early release, we need to know that we confront more than sentencing law, we confront sentencing philosophy, too.

Uncharged and Acquitted Offense Sentencing

Last week, I found a July 3, 2008 “white paper” and enjoyed studying it over the weekend. Deconstructing the Relevant Conduct Guidelines: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing by Amy Baron-Evans and Jennifer Niles Coffin is a welcome read based on historical records, as well as legal cases and US Sentencing Commission commentary. It's not written for the lay-person, but imprisoned people aren't really lay-people, and again we urge family members and friends of federal prisoners to send a copy of this 58-page document to a federal prisoner you love. Don't have one? Contact our office and we'll provide you with the address of a federal prisoner who'd appreciate this information.

“There is nothing in the legislative history of the SRA to support the use of uncharged and acquitted offenses in calculating the guideline range, and much that indicates this was contrary to congressional intent.”

According to experts Evans* and Coffin, the first Sentencing Commission didn’t have “uncharged and acquitted offenses” on their minds either. Evans and Coffin detail the process and early intent of 1984's Congress, and the Commissions’ first years of work revealing that it wasn’t until 1992 that the Commission “specified for the first time in the guideline itself (as opposed to commentary alone) that for the purposes of determining relevant conduct for jointly undertaken activity, no conspiracy need be charged.”

Evans and Coffin point out the Commission has never been able to explain how they transferred two Supreme Court cases (Williams from 1949 and the Tucker case of 1972) to relevant conduct sentencing, when these cases were from the era of indeterminate sentencing. The new sentencing system was determinate, an entirely different philosophy of sentencing. The old cases should have been rendered as moot as indeterminate sentencing had been.

The Commission justifies the"Real Offense Guideline Sentencing" system by describing it. That shouldn't cut it as legal tenets go. Congress could take notice, perhaps a couple of presidential candidates, too.

We’re told that the Parole Commission, before it was abolished as part of the 1984 SRA, “refused to take acquitted conduct into account as a general matter due to the ‘perceived unfairness’ of this approach.” Not one state sentences people to uncharged and acquitted conduct -- another telling fact.

From the lower standard of proof used to justify sentencing people to acquitted conduct, through lack of Congressional review, from the beginning unto this day there has been a lack of applied social and legal science — the authors make clear points - with historical citations, so it's far more than a rant.

The Commission has been historically unresponsive to its critics, doesn’t clarify confusion for the courts, unless the Commission thinks the “courts err on the side of leniency." Past transferring power to sentencing to prosecutors, these authors know the Commission has created unwarranted disparity — and with it — disrespect for law.

* Amy Baron-Evans is National Sentencing Resource Counsel to the Federal Public and Community Defenders. She represents Defenders’ interests in matters of sentencing policy, provides litigation support in sentencing cases before the United States Supreme Court and Courts of Appeals, and provides training in sentencing advocacy. She is a cum laude graduate of Harvard Law School and clerked for the Honorable Hugh H. Bownes of the First Circuit Court of Appeals. Ms. Baron-Evans is a former Co-Chair of both the Federal Sentencing Guidelines Committee of the National Association of Criminal Defense Lawyers and the Practitioners’ Advisory Group to the United States Sentencing Commission.

** 15-Year Assessment of Guideline Sentencing

Getting Real About Real Offense Sentencing

Getting Real About Real Offense Guideline Sentencing

A goodly number of people reading this ‘blog’ have a loved one serving time in federal prison, and doing a goodly portion of time on “Real Offense” — not Charged Offense. I remember expecting to hear that my brother was receiving a mandatory minimum of eight years. I thought when that moment came, I’d dissolve. When the judge said 330 months, my mom looked at me confused, I did some quick math, and she nearly died on the spot.

How did eight years, even his attorney thought would be eight or nine years, become more than 27 years in federal prison? Years later, a juror asked me how that happened, too -- and when the juror found out some of the details of 'so-called witnesses' -- the juror filed an affidavit with the sentencing judge. It would take me awhile to understand that the reason was an entirely new federal sentencing system, and a provision within it, a brand new Sentencing Commission dubbed “Relevant Conduct”, a new legal provision and term that would drive “Real Offense Sentencing Guidelines.”

With new federalized crimes––specifically drug, fraud, and firearms offenses––quantity-driven or ‘aggregatable offenses’ (the amount of drugs involved, money defrauded, or firearms seized) determine the sentence. Drug cases differ in that the amount of drugs, or combination of drugs, don’t have to be proven at trial, or admitted to in a plea bargain, and goes even further to look at a defendants' complete life's history, and much more!

If a jury says ‘not guilty,’ the judge can and does sentence the accused to that crime nonetheless. The prosecutor holds discretionary power. A defendant can plead guilty to one set of charges, and be sentenced to a whole string of others. The United States Sentencing Commission's 15-Year Assessment, admits that "The relevant conduct rule has been called the "cornerstone" of the guidelines system, and also say that "sentence begins at investigation." (Part I, Pages 16-77 are of particular interest to this subject).

To this day, I don’t think people realize how many years in prison people are serving for the very ‘crimes’ the juries didn’t feel the prosecutor proved, or crimes people "took responsibility" for.

How many years are being served for ‘acquitted conduct’ that shows up on the “Pre-Investigation Report?” And why didn’t fraud cases soar, or firearms, when these changes of law were made in the 80’s? Does corporate fraud devastate entire communities? Ask those folks living in the communities around ENRON headquarters if fraud is devastating. Ask ENRON shareholders?

Why did only drug imprisonment soar?

Only drug imprisonment soared because the corporations didn’t let the federal government go very far during the grid-making process of sentencing, or earlier investigative processes either - the policing end. Business pressured the Commission to ‘back-off’. Back off whom? Executives, CEO’s of large and wealthy corporations. There’s research on that subject available for a fee, wherein Rodriguez and Barlow show how business groups pressured members of the Commission to eliminate or minimize legal sanctions.

The big, brand new sentencing system that experts still crow about as “Modern Sentencing” is still bad 30 years later. And it’s still punishing the non-violent drug offender the most. One look at this incarceration chart — my imagination soars — doesn’t it look like ‘the finger’? Yeah, the non-rich are certainly ‘getting the finger’ these days.

David Yellen of Loyola University (Chicago) School of Law put forth an interesting paper entitled: Reforming the Federal Sentencing Guidelines’ Misguided Approach To Real-Offense Sentencing. Yellen is astute, and very politely discusses this vitally important issue.

Aside from studying legal papers into the night, I watch entertainment TV if a story appears compelling. Watching NBC's Dateline the other night and saw the story about the couple who went out with a dive-boat to explore the Great Barrier Reef. Left behind by the boat’s crew, they spent an evening, night and terrified dawn drifting in the open ocean before a miraculous rescue came. Both of them were terrified they were going to be attacked by sharks, but neither would say the “S” word. To say the “S” word would take them over the top of terrified, unable to cope with their terrible predicament.

Writers and critics of Relevant Offense within Real Offense Sentencing Guidelines are sort of like the couple in the ocean. We have the “S” word there, too. Not unlike sharks in their power to devour, they’re called snitches, to be precise, and for best purpose, called the 'Rewarded Informant" today. Their tales show up in police offices through various means. Some people are out of work and know the police pay for ‘information from the streets.’ A person can make a regular living at it. Other rewarded informants appear in the form of a friend, the one who gets caught first, or an acquaintance who gets caught and won’t "rat-out" his friends. A friend of the friend, from years ago, fingers you, and rewarded words are believed by the prosecutor and/or the authority who writes and influences the Pre-Sentence Investigation Report that includes a calculation of federal prison time that must be served.

The sharks of the drug war show up before sentencing. The rewarded informants' words, show up to convince judges to allow militarized police to carry out a no-knock drug raid. They show up at the grand jury, and trial, and the government calls them ‘witnesses.’ They show up at sentencing for the relevant conduct story that puts the convicted or plead-out person into the "Real Offense Sentencing Guideline," and that's where a defendant really gets nailed.

What’s eating us, or might eat you, needs to be talked about, and outside of academic circles. Okay, we can't say the "S" word, but we certainly can talk about the troublesome informant system. Looking hard at relevant conduct, we come smack in the face of rewarded "testimony" via the informant — not proven before a jury to be true — but proven to add more years than most charged offenses do. That’s not justice.

I attended the Second Roundtable, convened by the ACLU, to explore how to make changes in law to correct some abuses within a legal system dependent on desperate informants to ‘solve crimes.’ Davy-D, a father of the hip-hop social change movement, was there, and at one point lamenting that we’d been on the defensive since people ‘on the street’ began to teach about the workings of the informant system––and the threat to public safety and social order that such a bad policing system is.

Leading fellow citizens down the road to greater understanding of the Federal Sentencing System, including Real Offense Sentencing Guidelines, is one way to find some high ground on the slippery issue of informants and policing; informants and prosecutors; informants and the sentencing judge, and informants on our society entire.

Now readers, beyond difficult legal papers on the problem — what are your ideas about ‘translating’ difficult concepts of law for the average person-on-your-streets? Or do you have a question? We're listening. Send us email, or leave a public comment by selecting the comment link below.

In Struggle,
Nora
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Drug War Sentencing

Sorry about being the world’s worst blogger — on regularity that is. It’s not a regular summer, except for one thing - we still get a lot of mail from prisons. Wally Parades wrote fairly recent:

Dear NC:

Many years have passed since I last wrote your organization… I am presently 64 years of age. I am serving an imposed sentence of 360 months for the non-violent, victimless offense of a single delivery of a controlled substance to a paid, contractual, criminal informant. No money ever exchanged hands, and not a single person witnessed the alleged offense. Yet, a jury believed the paid testimony of a person making a living by accusing others.

This September I begin my 20th year in prison. Over the past two decades all of my family, but one sister has passed away. For two decades I have listened to the hopes and dreams of legislation to come, that would put an end to these draconian sentences.

For years, elderly offenders such as I, looked hopefully to an elderly offender law that just might afford us our last years with the few loved ones we have left. The Second Chance Act of 2007 has a very limited program, not subject to law, but subject to the discretion of the Federal Bureau of Prisons.

The US Sentencing Guideline’s in Chapter Four, clearly exclude convictions over 15 years old for establishing a criminal history score, yet the Second Chance Act permits ‘any’ prior conviction of violence to exclude an inmate’s eligibility. More so, the Bureau of Prisons uses relevant conduct, and acquitted conduct. [As the federal judge must use in sentencing —Ed. Note] An individual charged, but exonerated of the offense, still has a history of violence… Respectfully, Wally

Today, I ran across an article from the Washington Times, June 29, 2008, "Revelant Conduct" Can Add Time to Sentences. It was great to see one. Steven Kalar, a senior litigator in the Northern District of California's Office of Federal Public Defender believes the Supreme Court will take up the issue soon. Here's a small excerpt:

"The point, he [Kalar] said, is that a criminal defendant might not benefit greatly from acquittal of all the charges in a major conspiracy case except for a seemingly minor count.

Prosecutors still can point to 'relevant conduct' - the acquitted charges that jurors rejected or other accusations the jury never heard - and ask a judge to mete out a tougher sentence.

Mr. Kalar said that while juries must make their findings based beyond a reasonable doubt, sentencing judges instead can base their findings on a preponderance of evidence."

John Chase, long time advisor to the November Coalition was exploring the horror of "Relevant Conduct" with me just last week. We were wondering together, why this part has been so difficult for people to grasp, for if they did, they'd reject this part of federal sentencing law. It would scare people so much, they'd demand immediate change. John had a simple, but likely truthful explanation.

Problem explaining these two concepts is 'cognitive dissonance'. People live their lives believing a certain thing, then someone tells them it ain't that way. They simply don't hear the new information.

Orrin Hatch did it back in 1998 when the 3 judge panel of 10th Circuit ruled that testimony rewarded with promise of leniency unconstitutional. Orrin's instant reaction was something like ".... The entire federal system relies on it", and the 10 judge en banc Circuit agreed with Orrin. It was such a shocking idea it must be wrong. (His exact quote is probably archived somewhere at Media Awareness Project.)

Same way the idea that the sentencing guidelines should be guidelines. "What, you mean they're not?" Cognitive dissonance again. (Humpty Dumpty said "When I use a word, it means just what I choose it to mean - neither more nor less.")

Same problem with 'real offense' and 'relevant conduct'. Yes, it is amazing...

Thanks John, and for those still with me, plug your nose and dip into the world of word-spin, where the words do not mean what would ordinarily come to mind when you saw them. Real Offense Sentencing and Guideline Sentencing are samples of those, so remember the guidelines aren’t guides, but mandatory sentencing ranges, and the ‘real offense’ and ‘relevant conduct’ tells the stories of rewarded informant(s).

The first mention of “Real Offense” I can find in our sentencing and penal history is a story out of 1833 Sing-Sing prison, uncovered during a special legislative investigation. Guards wove wire into their whips and as men arrived to begin their sentence, they were stripped, then lashed across their genital area “for alleged offenses committed previous to conviction,” and other assorted things. I found that in an old historical piece, "We Are the Living Proof," written by Dr. David Fogel, one of the designers of our "modern era of sentencing."

Today relevant conduct, and real offense pushes drug offenders sentences so high, and so often, that it “can have a dramatic impact on sentence length, often eclipsing the impact of all other sentencing factors.” That's from Professor Berman's writing on this very subject, (page 106) A More Perfect System: Distinguishing Offense Conduct and Offender Characteristics.

When the Sentencing Reform Act was passed 1984, the United States Sentencing Commission, a new governmental entity was charged with implementing the new sentencing system. The newly formed Commission was divided, hurried and a draft became law. I found that assessment of the day, in a gem called, From the Ne'er-Do-Well to the Criminal History Category: the Refinement of the Actuarial Model in Criminal Law, by Benard E. Harcourt, Professor of Law, beginning on page 121.

If you have the ability to print these documents, and send them to a federal prisoner, suggesting they share it in the law library of the prison if possible --that is one way of creating more discourse, between academia and people effected by the laws. If reforms may be coming, if the Supreme Court will further rule on the validity of prison sentences based more on 'informants' bartered words' and 'acquitted conduct' then it's time for all the people in the middle to weigh in, too. The average person in the United States welcomes understanding.

Your comments, your stories of how your loved one is serving mandatory 'guideline' time on acquitted conduct -- called "relevant" and "real offense" continue to be important, and you can leave comments below.

We'll be discussing this subject in much more length, thanks for following along.

In Struggle,
Nora

Understanding the US Sentencing Guidelines

While studying "real offense" and "relevant conduct" and how these tangled legal terms have turned into tangled laws, I ran across one of the best papers explaining some the fine points of the US Sentencing Guidelines I've ever read. It was published this month and this year.

It's entitled, Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip, and written by Mark Osler a professor at Baylor Law. We are sending a few copies out post haste. I'm hoping that many federal prisoners will have the opportunity to study it, then put this important "reform document" in the prison law library. It's an easy read (as legal papers go), about the gruesome federal sentencing laws, and those aren't easy to come by — good papers on the US Sentencing Guidelines, that is. I promise you, -- your imprisoned loved one will thank you profusely for downloading it, printing it, and sending it to them. It's 50 pages.

Tom Murlowski, November's Office Production Manager is printing a few copies that will go out in today's mail. We've some key legal thinkers inside the wall and you might be related to one we don't know. We try to get some of the pertinent information to at least some imprisoned members. We are hoping this blog will assist reaching more imprisoned members, with your help. We'll list only the best of 'reform minded' documents. That said, let your loved ones know, comments on these papers are welcome. Our address is: November Coalition Foundation; 282 West Astor, Colville, WA 99114 and we look forward to comments.

Most authors of law make tinkering suggestions, after big beefs about irrational laws. Not the inestimable Professor Osler who also tells us that things are worse than ever by explaining, "The result, even after Booker, has been the most restrictive sentencing system in the nation—one that imposes more uniformity and restricts judicial discretion more severely than any of the 50 state systems that overlap with federal courts in their common project of regulating crime."

Within this rigid system are fast track programs and substantial assistance departures, I've tried to explain it -- any uniformity is turned on its head, in various forums, and formats, for a long time.

Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip does the job better than I can do today, and for me, it darn well beats having to read my own awkward explanations when I search for inspiration and more knowledge on the subject!

Law students, constitutional defenders and anyone interested in Sentencing Guidelines, especially with regard to the federal system, will want to study Professor Osler's work, too.

Scrapping the guidelines is one of his suggestions, another is to have Congress return to traditional goals of sentencing and move away from the broad dictates, strange special interests in certain crimes over others, and close the trap doors -- the ability for Congress and the Commission to respond inappropriately to unscientific and biased pressures.

Osler asks, "Do we want an irrational and pointless construct at the center of our sentencing structure, even if it is not strictly mandatory?"

Then answers, as would I, "I would hope not."

Lastly, Osler proposes Congress could start over again with fewer goals, fewer advisory guidelines -- from scratch. A"massive effort," but "worthwhile," one he suggests.

Osler believes that such a process, though "massive" would allow thorough "rethinking of charge v. real offense conduct as the basis for sentencing," and host of other issues that November Coalition has long brought to public attention, including the absence of rehabilitation in the federal system, even though it's supposed to be a goal of US sentencing.

Osler's hope will only have hope if the enforcers don't outnumber other citizens, the stakeholders who should serve on the US Sentencing Commission and have been excluded thus far. If Professor Osler was at the head of the table, along with a few former prisoners, social workers that serve people released from prison, social scientists, not just their data, I'd think that effort would bring us measures of justice.

The cost of our 30 year experiment can't be borne, so a 'massive effort' now could prove to be the massive solution to our massive imprisonment problem, so we shouldn't be afraid of big jobs of solid reform. We really don't have a choice -- our country doesn't have disposable income anymore.

Last, but best is Mark Osler's explanation that parole and good time provisions were instruments that Congress and Sentencing Commission had to further their goals of justice -- by abolishing parole, and reducing good time to a pittance -- all they have is sentencing. Really, no one wants to miss reading this important document.

People in federal prison should study this, anyone interested in federal law -- so if you are a loved one of a prisoner -- please download, print it out -- study it with loved ones, friends, and join a public discussion about what should replace 'the mess' -- we find ourselves in.

In Struggle,
Nora