Informal, hidden procedures define injustice

By Nora Callahan, Executive Director of The November Coalition

Last November, the United States Sentencing Commission (USSC) published a report entitled, "Fifteen Years of Guidelines Sentencing, An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform." Amid a stunning number of disclaimers and extra-legal phrases that admitted defeat in achieving all other objectives, the Sentencing Commission pronounced victory in the death of judicial discretion.

Missing history

The era of harsh mandatory sentencing began as a social reform movement in the early 1970's, eventually led in Congress by Senator Edward Kennedy (D-MA). This movement identified and criticized disparate criminal sentencing around the country. Crafting new laws to correct the disparity, mostly racial and economic, was another matter entirely, and Senator Kennedy abandoned the project.

By 1984, with a different crowd in Congress, influenced by a get-tough-on-drugs movement, the effort to reform disparity turned into two rails of sentencing laws that would take prison expansion into a sprawling prison industrial complex in less than a decade. The USSC calls this era the "Decade of Development."

The Sentencing Reform Act (SRA) was passed into law in 1984 and charged the new US Sentencing Commission with developing a system of mandatory grid sentencing. After that was accomplished, the Guardians of the Guidelines were to monitor the new Sentencing Guidelines, indeed not guides at all, but more accurately a rigid framework. Before the grids were completed, Congress added a set of harsh drug mandatory minimum laws through the Anti-Drug Abuse Act of 1986 (ADAA).

The SRA was intended to "inject transparency, consistency, and fairness into the sentencing process," and the Sentencing Commission was charged with devising the mandatory grids and monitoring the results.

There is no history or published documents that reveal why the Commission extended the second rail of mandatory drug sentences based on quantity into "17 different levels falling below, between, and above the two amounts specified in the statues," for a total of 43 offense levels.

The Sentencing Commission laments the missing annals saying, "This is unfortunate for historians, because no other decision of the Commission has had such a profound impact on the federal prison population. The drug trafficking guideline that ultimately was promulgated, in combination with the relevant conduct rule, had the effect of increasing prison terms far above what had been typical in past practice, and in many cases above the level required by the literal terms of the mandatory minimum statues."

The USSC today, without any documented history, has to assume that "Congress intended to establish a two-tiered penalty structure for most drugs." They admit that the ADAA was "expedited through Congress in the summer of 1986 in the wake of a number of well-publicized tragic incidents, including the overdose death of a first-round NBA draft pick, Len Bias."

Again, and unfortunate for historians, "the legislative history of the statute is limited primarily to statements made on the House and Senate Floors."

Severe sentencing came to the drug offender, especially to brown and black ones. The goal of a transparent legal system was lost when agencies failed to adopt or promulgate procedures that would account for monitoring the process and results - now in the hands and power of prosecutors.

The 15-year old system was put into some check with the Booker decision from the US Supreme Court on January 12, 2005. The US Sentencing Guidelines were declared unconstitutional and must now be used as a guide, not a mandatory grid.

The decision limits retroactivity, however, and few federal prisoners can expect sentencing relief. Unless a prisoner is fortunate enough to have a direct appeal still alive, retroactivity is not extended, and the new decision is now being interpreted in lower federal courts, and not yet settled.

The Booker case doesn't render the ADAA's drug-quantity table folded into the Guidelines in 1986 unconstitutional - drug defendants still face the wrath of mandatory minimum sentencing.

A prisoner who took a plea bargain isn't factored into the Supreme Court's decision at all - even though most that pled guilty did so under the threat built into "Guideline" mandatory sentencing. The system is still dependent on coercive tactics, and 90% of federal defendants take plea bargains rather than face two rails of sentencing, easily trumped or manipulated - and the coercion has no formal rules, and there is no way for the Commission to monitor it. Most federal prisoners today are non-violent drug offenders who were encouraged by counsel and the prosecutor to take a plea bargain.

The SRA of 1984 gave law enforcement officials power to write federal sentencing laws. Law enforcement was charged with assigning years to the sentencing grid, writing laws that gave power to the prosecutors, but no one - not Congress, law enforcement, or the US Sentencing Commission - wrote, much less promulgated, formal procedures for the new sentencing system.

The sentencing of nonviolent drug offenders is the single greatest multiplying factor behind the monumental increase of federal prison populations in the last 15 years. Put another way, without special drug sentencing tables, the federal prison population would be stable, even with the abolition of parole. Aside from drug crimes, guideline sentencing adjusted for many crimes of violence, larceny and others after the abolition of parole. Drug crime sentencing soared alone.

We had an independent judiciary and procedures pre-1984. Today we have prosecutors and policies that vary from region to region. The SRA (unwittingly or not) gave the prosecutor power to charge, power to 'downward depart,' and sole power to find the facts. There is no one set of formal rules that prosecutors must follow, therefore, the USSC cannot monitor over 90% of the process. This power scares defendants and they plead guilty.

Sentencing disparity alive

The Sentencing Commission concluded that prosecutorial promises of downward departures routinely coerce guilty pleas from defendants. The prosecutor is the only agent who can move the court for a departure, a sentence reduction or increase to the normal sentencing range. The USSC admits that most of the bargaining on charges is done behind the scenes, rendering any factual analysis of plea bargains - impossible. The USSC admits that this is a big problem area that is causing terrible disparities, affecting defendants more often than the government.

The certainty of sentencing is more uncertain than before the SRA because the plea system is mostly invisible, and there are no formal, routine procedures that US Attorneys follow. In 1992 the Commission required prosecutors to "maintain documentation of the facts behind and justification for each substantial assistance pleading," and yet, no standard for collecting information has been written, and there is no data accessible for inside or outside researchers to process.

There was a written policy memorandum that the USSC provided the court, but when surveyed, most judges didn't know of its existence, and didn't follow the procedure when they did.

Presentencing investigations

The US Parole Officer prepares a Pre-Sentencing Investigation Report (PSI) and determines by simple arithmetic where a defendant falls within a presumptive range of years to serve, with supporting facts provided by the prosecutor. Many Parole Officers use only information offered by prosecutors, while others do independent investigating, but again there are no formal, regular procedures for parole officers to follow, and the Sentencing Commission cannot monitor this functionary of the sentencing process.

Real offense conduct

Real offense behavior or relevant conduct is an avenue of disparity because there is no formal process for the finding of facts that become real offense, as opposed to charged offense. Lesser and easily proved charges can be brought before the jury, while extra, more serious charges, harder to prove, can be brought up later in the presentencing report as real offense behavior.

By the Sentencing Commission's admission, "drug quantity often in highly contested disputes must be resolved based on potentially untrustworthy factors, such as the testimony of co-conspirators." Drug quantity, unless bargained for unseen, will be charged or considered a real offense and considered in a defendant's PreSentence Investigation Report. Again, these procedures are informal, and hidden.

Race discrimination

The Criminal History mechanism designed to protect society by increasing the prison sentence for a person with a criminal drug past was based on non-existent data. Research now shows that drug offenders with a multiple-arrest history have almost half the recidivism rate as other offenders combined. Therefore, the 'career offender' designation for a drug crime has no basis in fact for the stated purpose of protecting society from further harm.

The Career Offender label and the disparity of crack/ powder cocaine sentencing have combined to produce shameful, disproportionate sentencing gaps. Before the guidelines, the gaps were smaller, today the gaps are chasms. The USSC admits that "proving discrimination is difficult if a decision-maker chooses to hide it," and that's the prosecutor. Before implementation of the US Sentencing Guidelines that included Mandatory Minimum Sentencing, the majority of federal caseload was white. Today the caseload is mostly black and brown.

To summarize the findings of the USSC 15-Year Report, I conclude that the only certain accomplishment of the guidelines and mandatory drug sentencing laws has been to remove discretion from a federal judge's decisionmaking, simultaneously cutting legal protections from a defendant's rights. Unwarranted discretion was given to the prosecutor, and the defendant stripped of most civil rights, when lawful procedures that balance power were not written or maintained.

The November Coalition takes the position that legal arguments for retroactive Blakely/Booker application, and reform of federal drug sentencing laws, are made throughout the Sentencing Commission's 15-Year Assessment. We urge legal students, reformers and federal prisoners to study it.

You may request a hardcopy of the USSC's 15-Year Assessment by writing:

United States Sentencing Commission
One Columbus Circle, NE
Suite 2-500, South Lobby
Washington, DC 20002-8002
or by telephone: 1-202-502-4500

The 15-Year Assessment is also available online at www.ussc.gov/15_year/15year.htm.