Petition title
The US Sentencing Commission's Assessment of How Well the
Federal Criminal Justice System is Achieving the Goals of Sentencing
Reform warrants study. You
can view the Executive Summary and download the report here.
History of Guideline Sentencing and a Case
for Reform
In the mid eighties, Congress dramatically changed the federal
sentencing system. The changes followed widespread discontent
with the old sentencing system, and they ultimately led to the
passage of the Federal Sentencing Guidelines in 1987.
In the old system, judges determined criminal sentences. They
considered the facts of each particular case -- including the
circumstances of the offense and the life history of the offender
-- and chose a sentence they considered fair.
The only requirement was that the sentence be within a statutory
range, and the ranges were often extremely broad. Statutes typically
authorized sentences like "not more than five years,"
"not more than twenty years," or in some cases, "any
term of years or life." Judges had authority to impose any
sentence within the statutory range.
The imposition of the sentence was only the beginning. Once
the person was in prison, the parole board determined the actual
date of release. The parole board considered circumstances like
the person's conduct in prison and efforts towards rehabilitation,
and it released people to parole supervision when it thought
they were ready -- often after just half the sentence. If the
person misbehaved after release, parole could be revoked and
the person could be incarcerated for the remainder of the sentence.
In the 1970s this practice fell into disfavor because it permitted
too much disparity between cases. Different judges sentenced
similar offenders differently, and parole boards became too powerful.
If two identical offenders were each convicted of a crime carrying
a sentence of "not more than twenty years," one might
spend three years in custody and the other might spend fifteen.
Evidence accumulated that the system led to arbitrary decision
making and sometimes discrimination against poor people and minorities.
In 1984 Congress addressed these concerns by creating the
United States Sentencing Commission and ordering the promulgation
of the Federal Sentencing Guidelines. The new system sharply
curtailed parole and confined judicially imposed sentences into
narrow ranges. Congress enacted the Guidelines into law in 1987,
and in 1989 the Supreme Court held that the effort was constitutional.
[See Mistretta v. U.S.]
Guidelines use standardized worksheets to calculate the sentence.
In principle, the process is a lot like calculating income taxes
with a federal 1040 form. The worksheet is complex and intricate,
but in theory it guides everybody to the same conclusions.
Guidelines operate by assigning an offense level to every
crime -- low offense levels for minor crimes and high levels
for major crimes. At the same time, the guidelines direct the
calculation of the criminal history of each defendant. A person
with a clean record starts with zero criminal history points,
and points are added for every subsequent offense.
The task of the judge is to look up on a grid the spot where
the offense level intersects the criminal history. The grid assigns
light sentences to people with low criminal histories who commit
lesser crimes, and stiff sentences to people with long criminal
histories who commit severe crimes.
A Case for Reform
The Sentencing Guidelines, which promised to bring order and
rationality to sentencing, have instead brought inconsistency
and disproportionality. Serious crimes sometimes lead to minor
sentences, while minor crimes sometimes lead to many years in
prison. Judges have lost the ability to tailor the sentence to
fit the circumstances of each individual case. [1]
One size does not fit all.
The Guidelines are one cause of the dramatic growth in the
federal justice system. The number of federal prisoners has increased
nearly seven fold since 1980, rising from 24,000 in 1980 to 106,000
in 1996, and to over 170,000 in 2003.[2]
The surge has required the construction of more than 65 new federal
prisons and budgetary increases that stagger the imagination.
[3]
Contrary to popular belief, few people sent to federal prison
committed violent crimes like murder, robbery and rape. 77% of
the admissions in 1994 were for non-violent crimes. Many of these
people are serving disproportionately long sentences, or they
could safely be sentenced to non-custodial alternatives. In 1992,
the federal system held 12,727 non-violent, low-level drug offenderswith
zero criminal history -- for an average time served of nearly
six years.[4]
It costs American taxpayers approximately $22,000 to keep
each of these men and women locked up for one year, the full
tax burden of roughly four American families.
The budget arithmetic is astonishing. Taxpayers spent approximately
$1.7 billion incarcerating this single category of offender --
people who are non-violent by definition. That money could be
better spent in other ways; for example, $700 million could provide
drug treatment and community supervision, and the remaining $1
billion could be returned to the taxpayers as savings.
It is no wonder that Americans are frustrated by the ineffectiveness
of their criminal justice system. The system costs too much,
fails to prioritize and fails to keep people safe. While the
government plows billions of dollars into prisons, it cuts students
loans, underfunds libraries, increases fees at national parks,
eliminates opportunity creating programs, and leaves the highways
to decay. Even fundamental programs like Medicare and Social
Security risk budget cuts while expenditures in the justice system
go unquestioned.
If the expenditures bought safety they might be justified
-- but they don't. A 1992 survey of federal judges found that
judges believe only one in four sentences they impose under the
guidelines is appropriate. Many prominent senior judges are so
distressed they have exercised their option not to hear criminal
cases because they do not wish to participate in an unjust scheme.
The most common complaints are the mismatch between the punishment
and the crime, and the general irrationality of the system.
One problem in the federal system is the complexity of the
grid. The federal grid contains 258 boxes and the calculations
needed to determine the proper box occupy a 393 page rule book
with 539 pages of appendices. Every calculation opens the possibility
of arithmetic error or interpretive disagreement, so the final
product contains disparities that may be as bad as those the
Guidelines were designed to resolve.
A system intended to streamline and simplify the sentencing
process has instead created a far more complex system that has
clogged the courts with appeals over Guidelines' applications.
Furthermore, the federal Guidelines are not simply guidelines,
as the name suggests: they are mandatory. Judges are required
to follow them, no matter how inappropriate the result. The loss
of flexibility makes it impossible to tailor the punishment to
fit the crime and the criminal.
Another particularly urgent problem is the shift of sentencing
power to the prosecutor's office. Prior to the Guidelines, prosecutors
charged people with crimes, and then judges sentenced people
for those crimes. The two tier system created checks and balances
that left neither party with too much power. Under the Guidelines,
however, the charging decision becomes for all practical purposes
the sentencing decision.
A prosecutor who opts to charge a person with one crime rather
than another determines the base offense level and thus for all
practical purposes the sentence. Because there are thousands
of offenses in the federal criminal code and because individual
crimes often violate more than one section of the code, the prosecutor's
decision about which section to charge under, or how many counts
to bring, effectively determines the sentence. The concentration
of power into a single party invites distortion in the system.
Another reason power shifts to the prosecutor is that only
the prosecutor can reward suspects for providing information
on other suspects. The judge cannot initiate the process and
has only the smallest oversight. Unfortunately, many crime kingpins
have substantial information to trade for lesser charges; whereas
the low level participants have little information to trade.
That is one reason our prisons are filled with low grade drug
offenders while kingpins sometimes get off easy.
The Coalition for Federal Sentencing Reform (an organization
founded in 1996) determined that they would examine a variety
of issues relating to the operation of the Federal Sentencing
Guidelines, and seek to make recommendations for reform. The
Coalition expects to examine whether the Guidelines:
- are excessively complex and lead to excessive litigation
- should be mandatory or advisory
- should incorporate conduct that was acquitted after trial
or could have been charged at trial, but was not
- have reduced disparity and successfully balanced the goals
of uniformity and proportionality
- have disrupted the balance of power between the courts and
the prosecution
- should be expanded to include non-custodial sentences
- should grant judges added flexibility to take into account
human elements such as family responsibility, employment history,
or physical and mental condition.
In addition, the Coalition has examined larger issues relating
to the role of the United States Sentencing Commission and the
scope of the Guidelines. These issues have included:
- The relationship between the Guidelines and mandatory minimums
- Whether the Guidelines structure should be constrained by
the capacity of the federal Bureau of Prisons
- How the widespread dissatisfaction of federal judges can
be developed into recommendations for reform
- Whether the proceedings and deliberations of the Sentencing
Commission should be opened to increased public scrutiny and
input
- Whether good time credit should be increased for certain
classifications of prisoners, such as first time non-violent
offenders
- Whether the Sentencing Commission is carrying out the statutory
mandate described in the legislation that created it
Footnotes
[1]United States v. Eiselt, 988 F.2d 677
(7th Cir. 1993).
[2]Bureau of Justice Statistics Bulletin: November 2004, NCJ
205335; Prisoners in 2003
[3]40 federal prisons had been built in 1995; 10 more were under
construction 1996. Bureau of Justice Statistics: Sourcebook of
Criminal Justice Statistics 1995 (1996): table 1.98, page 101.
Federal law enforcement totaled $4.1 billion in 1979 and $17.4
billion in 1992. Bureau of Justice Statistics: Sourcebook of
Criminal Justice Statistics 1995 (1996): table 1.1, page 2; Bureau
of Justice Statistics: Justice Expenditures and Employment, 1992.
Official 1996 data are not yet available. http://drugwarfacts.org
[4]U.S. Department of Justice: An Analysis of Non-Violent Drug
Offenders with Minimal Criminal Histories (February 1994).
Adapted from The Case for Reform; Coalition For Federal Sentencing
Reform (Revised February 1997)
Back to the Top
Principle Fairness Of Retroactivity
"Nora , tell us what to do!"
"Should I sell the house and get a lawyer for my kids?"
First, visit http://www.drugpolicy.org
and send an automated letter to your representative in Congress.
You could send a hardcopy letter in the mail as a follow-up,
too. Get to know your representative.
If you want to learn more about how to build a relationship
with your leaders, visit: http://www.november.org/razorwire/2004-01/MailCall.html
The last part of that sequence of images and two prisoner
letters is an article entitled, Getting your Message Through
is Your Highest Priority.
A Case in Point: The story of Jerry A. Lewis, prisoner of
the drug war
U.S. Sentencing Guidelines - A Monumental Mistake
by G. Patrick Callahan, Prisoner of War in America - this
article originally appeared in the Razor Wire in 1998
 It is
difficult to believe that allegedly fair-minded, enlightened
men of law could have come up with a sentencing scheme so positively
counter productive, so incredibly and destructively punitive.
The U.S. Sentencing Guidelines are a miserably failed attempt
to create uniformity in sentencing in federal criminal cases
throughout the United States. In a nutshell, it sets a mandatory,
rigid schedule of punishment that would not vary from one federal
jurisdiction to the next. In theory this might sound good, but
the prosecutor is given great latitude in manipulating the system.
The story of Jerry Lewis is highly typical of the sort of
tyranny that develops under the federal sentencing scheme when
a prosecutor and a judge decide to double-team a defendant. Jerry
Lewis was a first-time, nonviolent offender, a Marine Corps veteran
of the Vietnam War awarded the Combat Action Ribbon and Vietnamese
Cross of Gallantry. What follows is the rule in these cases and
not an exception.
In 1988 Jerry was approached by a paid government informer
under the control of a team of DEA agents. This informant attempted
to set people up for drug cases and in this capacity approached
Jerry, trying to make a direct drug buy. Jerry told him he wasn't
into the drug scene but told him he had once known people who
were. Over the course of the next few months the informer kept
after Jerry to make a direct deal, but he was repeatedly told
that it wasn't possible.
The government agents running the sting operation then switched
their tactics and had the snitch question Jerry about the people
he knew and if he could set up a meeting. Jerry made the mistake
of telling the informer that he would "check around."
But nothing happened and the informer came back now and then
for a period exceeding two years. At no time did Jerry ever initiate
contact. The informer's persistence finally paid off when Jerry
told him he once knew a fellow in Florida named Carlos. For three
more months the informer plagued Jerry about Carlos, and Jerry
ultimately told him that he would call Carlos himself to see
if he was still around.
The informant and his "money man" -- a DEA agent
acting undercover -- quickly agreed to buy airline tickets to
Florida. Jerry was reluctant to go as he was about to have an
operation and was wearing a neck brace. When he arrived at the
airport, he was immediately arrested. No trip to Florida was
ever made; no introductions and no drugs were purchased. At the
time of his arrest, Jerry was a family man with two sons and
employed as a machinist and tradesman, a taxpayer.
Jerry made another mistake in the eyes of the US Attorney
by taking his case to trial, pleading not guilty and taking the
stand in his own defense. Although the U.S. Constitution guarantees
the right to a trial and to face a jury of one's peers, under
the U.S. Sentencing Guidelines prosecutors routinely extract
the utmost punishment possible if you exercise your right. You
have the right to a trial, in other words, but only god will
help you if you ask for one.
Jurors in Jerry's case asked the judge straight away if they
could consider entrapment as a defense, given their perception
of the continuous hounding by the informer, goaded by the federal
agents, over such an extended period of time. By asking this
question, the jury revealed its concern that the whole maneuver
was in the nature of coercion -- or at least unethical pressure
upon someone who might not have been predisposed to commit a
crime. The fact that Jerry never initiated contact seemed a highly
mitigating factor. But the judge, David Hansen of the Northern
District of Iowa, was adamant that the jury could not consider
entrapment as a defense. Jerry was found guilty of conspiracy.
No actual drugs were ever involved.
Here is how a person receives a thirty-year sentence for what
Jerry did, or more correctly -- what he didn't do. The federal
agents controlling the informer stated that IF he would have
been introduced to Carlos, and IF Carlos would have been willing,
and IF Carlos had any drugs, they would have wanted to buy five
kilograms of cocaine.
If one looks in the Sentencing Guideline Manual under cocaine
quantity-drug penalties are set by quantities dealt in-one would
find that the "entry" level into the Sentencing Table
is level 32 and reads: "At least 5 KG but less than 15 KG
of cocaine."
In Zone D of the Sentencing Table, a level 32 assignation
is set at 121 to 151 months, or just over ten years. In all civilized
countries throughout the world, a five-year sentence is considered
a harsh sanction. In England, for example, a 7-year sentence
is considered "crushing." Longer sentences are usually
only meted out to the truly violent and violent, repeat offenders.
Most civilized countries in the world will not consider conspiracy
as a crime in itself because, logically, it is tailor-made for
abuse by police and prosecutors, a case of enough real crime
to be dealt with without moving into the realm of the hypothetical.
However, in America the "thought" police are hard at
work.
Next, the sentencing judge decided that Jerry was "instrumental"
to the scheme and that, without Jerry, the federal agents would
not have been introduced to Carlos even though they weren't introduced
to Carlos anyway. In America, you do not actually have to commit
a crime; all you have to do is talk about it. Thinking aloud
can be fatal. Judge Hansen and the prosecutor, not content with
a mere ten or twelve-year sentence, thought that Jerry ought
to be considered a leader in the enterprise.
The U.S. Sentencing Guidelines, additionally, have within
them separate tables called "enhancements," a euphemism
hiding the fact that they are double punishment for the same
offense -- unconstitutional double jeopardy, that is. Jerry was
given a role in the offense leadership enhancement of four extra
levels on the Sentencing Tables which moved his sentence upward
from 121 - 151 months, to 188 - 235 months. That's 18 years,
but even this was not considered sufficient.
Judge Hansen next ruled that because Jerry had pled not guilty
and taken the stand in his own defense -- a right under the Constitution
-- but was found guilty, then he must have been lying. It does
not matter if a defendant lies or not, if you lose in a federal
trial (and something on the order of 98% of defendants lose),
you can be hit with an "obstruction of justice" enhancement.
Judge Hansen gave Jerry another two level increase on the Sentencing
Tables.
This "departed" Jerry's sentence upward yet again,
from level 36 to 38, or from 188 - 235 months, to 235 - 293 months.
Finally, Judge Hansen used the sliding scale at the top of
the Sentencing Tables: the criminal History Category. The judge
discovered that Jerry had a DUI first offense in 1986, his only
brush with the law, to which he pled guilty, paid an $800 fine,
and successfully completed one year of probation. Because the
judge claimed that this offense occurred during the hypothetical
time frame of the conspiracy charge, it should count as an "instant
offense."
Jerry received a point for the DUI and two points for the
instant offense for a total of three criminal history points,
sliding him toward the center of the Table. If one runs a finger
from Category II down to level 38, you will find that Jerry has
now moved up to 262 -327 months: a total of about 24 1/2 years.
He will also receive a 5-year period of supervised release tacked
onto and counting toward his sentence. There it is, taxpayers:
30 years for a "dry" drug conspiracy. He must serve
85% of his sentence at a cost of about $30,000 per year. Jerry
has been imprisoned for seven years and will not be released
from custody until May of 2012.
Many people petitioned the court for leniency in Jerry's case,
and nine of the twelve jurists, once they found out the horrible
result of their verdict, asked the court for mitigation of sentence.
Judge Hansen was unmoved; it was "next case", and so
much for any thought of compassion-so much for equity in law.
Equity is fairness and equity is the cornerstone of law in civilized
countries throughout the world. Obviously, something terrible
has happened in the United States, the death of equity within
the criminal justice system.
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