Smart on Crime, recomendations

Smart on Crime, recommendations for the new administration and Congress, deserves criminal justice advocates attention, and the link will lead you to website dedicated to presenting the catalog.

After the 2008 elections, America’s policymakers will take a fresh look at the criminal justice system, which so desperately needs their attention. To assist with that review, leaders and experts from all aspects of the criminal justice community spent months collaboratively identifying key issues and gathering policy advice into one comprehensive set of recommendations for the new administration and Congress. This catalogue is the fruit of those labors.

I hope you will share this information with your friends, and family, printing at least some pertinent portions for your imprisoned loved ones.

Federal crime issues of note

The subject of policing financial institutions, solving financial crimes and meting out punishment is beginning to make it’s way into the news.

The New York Times recently reported President Bush gutted the F.B.I.’s fraud investigation unit following 9/11.

The Federal Bureau of Investigation is struggling to find enough agents and resources to investigate criminal wrongdoing tied to the country’s economic crisis, according to current and former bureau officials.

The bureau slashed its criminal investigative work force to expand its national security role after the Sept. 11 attacks, shifting more than 1,800 agents, or nearly one-third of all agents in criminal programs, to terrorism and intelligence duties. Current and former officials say the cutbacks have left the bureau seriously exposed in investigating areas like white-collar crime, which has taken on urgent importance in recent weeks because of the nation’s economic woes…

…In the last four years, the Justice Department has scored fewer of the big-name prosecutions that marked President Bush’s first term in office. Even when investigations have pointed to corporate wrongdoing, the Justice Department has agreed, in dozens of cases in the last four years, to “deferred prosecutions" that allowed companies to pay fines in order to avoid criminal prosecution.

Business Week offered another take:

AIG Fraud Case: Using the Market to Set Jail Terms, Under new federal guidelines, defendants in big stock swindles could get 30 years to life

In coming weeks, five former insurance executives, including General Reinsurance ex-CEO Ronald Ferguson, are due to appear in federal court in Hartford. There, U.S. District Judge Christopher F. Droney will sentence them for their role in a sham transaction to boost the loss reserves of American International Group (AIG). When the deal was disclosed in 2005, prosecutors contend, it caused AIG's share price to drop 6% to 15%. Because of that, the defendants, who were convicted of fraud in February, could go to prison for life…

…Given the size of losses related to the subprime meltdown, prosecutors may be able to threaten alleged culprits with lifetime incarceration. Reid H. Weingarten, a Washington attorney representing Elizabeth Monrad, the convicted former Gen Re CFO, argues that "this puts unhealthy leverage in prosecutors' hands to extract unfair plea deals.

I have to agree, prosecutorial power threatening some people with life in prison, will start a “liars festival” just like it does in drug prosecutions. And these types of prosecutions seldom lead to culpable offenders punished appropriately — it leads guys and gals last in line, or those who stubbornly takes his or her case to trial — decades to life in federal prison. People will say anything under stress and duress of federal indictment, and to get out from underneath the weight of it. The Innocence Project has discovered and explored this easily exploited human tendency. That said, there will never be thousands upon thousands of “Organizational Offenders” (corporate and business fraud offenders) to warrant enough public pressure for their earned, early release, even if the wrong people end up in federal prison. With ill gotten goods confiscated, some will lack political power they had in two decades past. They’ll be just like us, only there won’t be many of them — a few hundred before this new federal ‘witch-hunt’ is over, perhaps — and victimized people won't be satisfied.

Before anyone rushes to condemn and terrify the offenders in the financial collapse, we need instead, to use this criminal financial crisis to re-visit powers of prosecutors, the politicization of crime, and what our incarceration system is supposed to achieve — especially on the federal level. If it is to build and maintain public and private gulags, without thought to the cost to our economy and human resources, remind your leaders over-incarceration doesn’t work. When people go home, they are broken, not better.

Financial institutions and powerful corporations leaned on the Sentencing Commission when mandatory minimum sentencing provisions for 'organizational crimes' were developed. How much imprisonment can our citizens tolerate?

There are about 113,500 drug offenders in federal prison today and most took plea bargains because they were threatened with decades of prison time. There are growing numbers of drug lifers, like Sharanda Jones who’ll die behind bars, without public intervention. Please read Sharanda’s story.

The country’s federal crime policy needs thoughtful revision, not another half-baked witch hunt that victimizes more people than any justice it metes out. Eroded constitutional rights, need restoration. “I love my country, but fear my government,” sits on the lips of too many good citizens. Returning to rule of law, and transparent legal procedures would restore citizen trust. Without trust in our leaders and powerful legal institutions, citizens will battle, not stand with their leaders.

Who makes the laws, and for whom?

Since the time I began proclaiming there wasn’t any justice in the war on drugs, nigh on a dozen years ago, our country and world has changed dramatically. Still, there is little substantive discussion about what went on back in the mid-1980’s when changes to our federal criminal justice system set us on the path we find ourselves today.

Raw capitalism requires wealth and consumption. Power can become unbalanced in a system such as this, so a democracy has to put in checks and balances for the people that don’t have wealth. When the system of checks and balances break down — good intentions go awry. Our federal criminal justice system shows glaring breakdown, so do our banks and financial institutions and the issues are deeply connected.

We were recently reminded by Joe Biden during the Vice Presidential debates that when “we don’t know what causes a problem, we can’t fix it.”

While the tough-on-crime Congress and Presidency of the mid-1980’s were beating their mostly white, hairy chests about fairness in federal law and about to get real tough, and mandatory on criminals across the lawless United States, corporate and business interests began a strategy that would coax five drafts in five years of wrangling before the Sentencing Guidelines for business crimes were put into law. Each draft was less, and less punitive.

Gone are the days of parole and hope of earned, early release. It is lock them up and throw away the key, but the US Sentencing Commission never recommended prison as a first choice for the banker, corporate polluter, development investor who ran afoul of federal law. Fines and probation were in the first draft and when the final draft was made law in 1991 — the fines were 97% lower than the Commission had originally recommended. And you could put your fines on credit so you didn’t have to do probation! So much for all that get tough — the only federal law violation that brought tougher sanctions was a drug violation. Five years for a couple of rocks, no prison time for stealing stock.

While the good citizens across the country were being sold a bill of goods about fairness and new, harsh justice philosophy coming to America, business interests wrangled out from under broad legal investigatory powers, punishments, fines and probation. The result? A conversation begging to find it’s way into mainstream headlines because this is part of ‘deregulation,’ and large part the cause of our growing unease, perhaps economic collapse.

For over 25 years, federal policing has been focused primarily on drug law violators and ‘street level’ crime, not on criminal players in business and financial institutions. After the Enron debacle, but not until 2004 would the Commission re-visit penalties for corporate, and business crime.

The interests of the public good has been long suffering while cherished legal principles continue to be destroyed in the name of a federal war on drugs.
New conversations about the over-haul of our criminal justice system are easy to identify, but seldom include critiques of the apparatus now in place, a Sentencing Commission that upholds draconian laws that punish the poor, even as corrupted financial institutions crumble, not just in the United States, but around the world.

For further reading:
Structural Contradictions and the United States Sentencing Commission, The development of federal organizational sentencing guidelines by Laurie J. Rodriguez & David E. Barlow.

Abstract: This research is a case study of criminal justice policy formation involving the development of federal sentencing guidelines for business organizations by the United States Sentencing Commission. It describes the decision-making process of the Commission and the influence of other groups and individuals on the process, and recounts their actions within the framework of structural contradictions theory. In the case of the federal sentencing guidelines, it is demonstrated that representatives of business opposed any legislation that was meant to limit the power of corporations or sanction the actions of their representatives, and therefore placed pressure on members of the Commission to eliminate or minimize such sanctions. The study confirms that the state, in an effort to foster the continued capital accumulation necessary for a healthy economy, acknowledged capitalist provisos and at least partially submitted to them during the development of the guidelines.

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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