Sentencing Guideline and Mandatory Minimum Fixes
In the last post I wrote about today's Congressional hearing on Booker and FanFan and possible fixes to the sentencing guidelines. I also mentioned that next week the U.S. Sentencing Commission will hold a similar hearing and Law Prof Doug Berman of Sentencing Law and Policy will be a witness (pdf).
That got me thinking about the time I was a witness at a Sentencing Commission hearing--in August, 1996--and how much I complained about both the federal sentencing statutes and guidelines. Here is the hearing transcript , my testimony begins at page 60. I told the Commission that our federal sentencing system had become "morally bankrupt." And I submitted a legislative fix--greeted favorably by one Commissioner. The chances of my being asked to speak today, in the Bush era, or speaking that boldly again: probably nil. Here's some of what I said (this is the oral testimony, not the prepared statement, with a few grammatical cleanups.)
As I listen here today to the judges, the defense counsel and the probation officers who have testified, what I'm hearing is we need to find a way to re-empower the Federal judiciary. This system is not working. The system has broken.... it's becoming morally bankrupt.
There is something wrong with a system that unfairly targets minorities, persons of color and women. There is something wrong with a system that allows the use of purchased testimony. There is something wrong with a system that has transferred the power given to judges by the United States Constitution to prosecutors. And we have to do something to fix it.
My purpose in appearing before the Commission was to garner support for a legislative fix to mandatory minimums that I had co-drafted with Boston Attorney Martin Weinberg on behalf of the National Association of Criminal Defense Lawyers. It would have eliminated the requirement that a motion to depart below mandatory minimum sentences be limited to defendants who cooperate with the Government. It would have allowed Courts to depart below mandatory minimums on their own motion, or on motion of the defendant, whereas now these motions have to be initiated by the Government.
One of the things that we have done as part of the legislative work of the National Association of the Criminal Defense lawyers is to draft a proposed piece of legislation that would be an amendment to 18 USC Section 3555 3(E). It has already been endorsed by two members of the Federal judiciary. Judge Hatter from the Central District of Los Angeles and Judge Prado from the Western District of Texas. Both of those judges traveled to Washington, D.C. in May to participate on a panel on mandatory minimum sentencing.
And what they told us was that 88 percent of the judges in this country have said no more mandatory minimum sentencing statutes should be enacted. 85 percent said judges should have more discretion in imposing Federal sentences. 88 percent said that the current Federal system gives too much discretion to the prosecutors. And 70 percent of the Federal judges opposed maintaining the current system of the mandatory minimum sentences.
Our legislative proposal would allow the judges to depart from mandatory minimum sentences for extraordinary circumstances. Not only upon motion by the prosecutor because of substantial assistance, but upon a Court's own motion or a defendant's motion.
And what I am asking this Commission here today is for each is for each and every one of you to assist us in finding sponsors among the members of Congress and supporters for this measure so that we can re-empower the Federal judiciary to make the sentencing decisions that should be done in all cases.
Here was the reaction from Commissioner Gelacek (scroll to page 63):
MR. GELACAK: One observation and one question if I could. Ms. Merritt, I'd be happy to take a look at your legislative proposal, if it's as you represented. I'll also be happy, speaking for myself personally, to assist you in getting co-sponsors on the Hill.
MS. MERRITT: I appreciate that and I will submit it at the conclusion of the hearing.
Back to what is wrong with the guidelines. Of all the things I complained about then, Booker and FanFan only fix one of them: relevant conduct may no longer be decided by a preponderance of evidence standard rather than one of beyond a reasonable doubt.
My lithany of complaints included:
...with respect to relevant conduct, I would submit that relevant conduct must be limited to the count of conviction.... the burden of proof... should be beyond a reasonable doubt.
I would disallow increases for relevant conduct based upon the uncorroborated testimony of former co-conspirators who are getting a sentence reduction for testifying at another co-conspirator's sentencing hearing ... I would mandate notice to the defendant of the intent of the prosecutor for the court to rely on uncharged conduct or conduct outside the count of conviction.
And for all drug offenses, I would get away from quantity...as a means of determining the guideline offense level in drug cases. Quantity is not the best yardstick. It creates disparity.
I think that the Commission should establish more alternatives to incarceration, particularly for nonviolent drug offenses. We should be increasing the range under the Sentencing Guidelines for persons convicted of drug offenses in which no guns, no weapons, no violence is used to be allowed to serve part of their sentences on home detention or in community facilities.
Instead of having 43 levels or 38 levels for drug offenses, we should go to a flat level and based upon that level, the judge should be free to depart in instances of heavy recidivism, guns, violence or extreme quantities.
There are unjust cases that happen every day with the application of the Federal Sentencing Guidelines and most of them are because of the charging discretion given to the prosecutors. Some of the worst abuses are in cases of historical conspiracies, cases in which former co-conspirators testified against the current defendant. We have to do something to change that system.
So, since there's a hearing tomorrow, here's hoping an enterprising Congressional staffer will print it out and pass it along to his or her boss. The last thing we need today are an increase in offense guideline ranges or more mandatory minimums.
As a sidenote, in February, 2003, Judge Edward Prado referenced above was nominated by President Bush for a judgeship on the 5th Circuit Court of Appeals. He was confirmed without objection by the Senate, and is a member of that court today. I ran into him at an airport last February, and asked him if he regretted publicly taking a stand against mandatory minimums back in 1996. His response, to paraphrase, was "absolutely not." He is just as opposed to them now as ever.
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