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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    Perhaps you could clarify something for me. Originally I thought that the major constitutional problem was that the Sentencing Guidlines allowed/required factors that were not judged by juries or addmitted to to be used in sentencing. This seemed reasonable that a person should not be sentenced based on alligations. (though of course some would disagree) Now everyone is saying that the judgement is about Manditory Sentencing. Is this not a Bait and Switch? Would not Manditory Sentencing be legal if it was only based on proven facts? Thanks...

    Re: Sentencing Guideline and Mandatory Minimum Fix (none / 0) (#2)
    by Avedon on Thu Feb 10, 2005 at 03:28:15 AM EST
    You make me feel so nostalgic for the good old days when knowing what you were talking about was the kind of thing that qualified you to speak in hearings on important subjects. But then, that further makes me nostaligic for the days when programs that worked were actually under serious consideration.

    Re: Sentencing Guideline and Mandatory Minimum Fix (none / 0) (#3)
    by wishful on Thu Feb 10, 2005 at 06:14:28 AM EST
    "The chances of my being asked to speak today, in the Bush era, or speaking that boldly again: probably nil." Well. That sent a chill up my spine.

    Avedon at February 10, 2005 04:28 AM ...nostalgic for the good old days... that line always crackes me up, no matter what its referencing.

    mike liverright--mandatory minimum sentences are set by statute and are not affected by booker or fanfan or the sentencing guidelines. If your guideline sentence comes out less than the mandatory minimum, you do the mandatory minimum. If your guideline sentence is more than the mandatory minimum, you do the guideline sentence. In other words, you do the bigger number. Under the mandatory minimum sentencing statute, the Government can file a motion with the court and ask that it not apply if someone has provided substantial assistance (i.e. cooperated against someone else.) That's the only way out. I was asking Sentencing Commission members to help us find sponsors in Congress for a bill that would change that. The guidelines have been mandatory in their application as a sentencing scheme consisting of ranges of sentences set by the Sentencing Commission. Mandatory minimum sentences are laws set by Congress.

    The constitutional problem IS the 6th amendment problem. Defense attorneys for years have been arguing that the federal sentencing system is unconstitutional and extremely unfair. An example of how absurd and fundamentally idiotic the sentencing guidelines have made otherwise educated judges: "Relevant conduct need only be found by a preponderance of the evidence, not the higher standard suggested, furthermore, even if a Defendant has put the Government to its burden of proof and won, and some or others of the charges have been aquitted, we can STILL sentence Defendant on those same aquitted charges if the sentencing judge finds by a preponderance of the evidence this same exact conduct." In other words, the jury found the defendant not guilty at a full blown trial - but the sentencing judge reverses the jury in some sick form of reverse jury nullification - but of course - this doesn't result in double jeapordy because a sentencing hearing is not another separate criminal case. HA! Take that logic and contemplate for awhile. We had a client who had a 4 count indictment -- we beat three of the counts and the remaining count should have been guideline range of like 6 or so...instead, of course the aquitted conduct became relevant conduct and he got 10yrs (120 months). Since I am in the 7th circuit, we filed a motion as soon as Booker was decided here. OF course, we were told to await the outcome once cert was granted. But our guy should benefit from this ruling - many others who have already appealed will get screwed. For one guy we tried a motion to recall mandate (the mandate being the denial of his initial habeus petition yrs ago based on Apprendi)...but those are essentially treated the same as a 2255 so if your former clients who are serving unconstitutional sentences ask for help...i dont know what to tell them. I have yet to find someone who thinks they can make an argument for total retroactivity of Booker -- - even if one is conceived - the courts likely wont allow it because to them...it would be too much work in an already overflowing ceptic tank of criminal justice. And you want to try the impossible...explain to a client's mother how her son can be found not guilty of 3 of 4 charges at trial and then get sentenced to 10 yrs basically based on entirely all the not-guilty conduct. Go ahead...give it a shot. Maybe you should ask one of the sentencing committee members who supports the old system to try that out. But alas, they just make the laws that put the poor and minority away - they dont actually DEAL with them. Mandatory minimums may even be worse. So I guess waiting to see how the judges react to Booker may be wise. This country is so f-ed up and so ridiculous when it comes to criminal law...I swear the sound of a prison being built gives politicians on both sides of the aisle a very tiny pseduo erection. A complete scrapping of all the guidelines is the only thing that can save the "federal system" if it wants to keep at least partially true to its constitutional role. Its like Uncle Jimbo said on SouthPark in reference to hunting animals to fend off overpopulation and starvation: "So you see Stanley, if we don't kill them, they will die." KILL THE GUIDELINES or the whole system will eventually die. Actually, I think the reason the federal system is so screwed is because of the federalization of the criminal law that has exploded in the last 40-50 yrs. 95% of all criminal laws on the federal level should not be there - - this is why the courts cannot perform their constitutional role and it is Congress to blame...both sides. Believe that!

    Re: Sentencing Guideline and Mandatory Minimum Fix (none / 0) (#7)
    by wishful on Thu Feb 10, 2005 at 12:05:30 PM EST
    I have seen judges base decisions to actually not apply the law as it should be applied, because they say that to do so would undermine the public trust in the justice system. Of curse I've only ever seen this happen in cases where defendants take the crappy end of this stick. My question is, do they really believe that public trust is important? I'm part of the public, and I have learned that there is much not to trust in the justice system. They have over 2 million in prison now, with the number growing rapidly. Maybe they better get ready for more people to see what REALLY goes on, like chi high's client's mom above. A real crisis in trust may just be imminent.

    I am just feeling the hasrh reality of the sentencing guidelines, my son and nephew are a victim of this form of what I call entrapment, to take another crimminal and then have him call up a friend and ask him to get him drugs while wearing a wire so he can get his time reduced, he has been indicted already shown to be guilty and then he is used as a witness like any thing he said would be absolutly true when you are faced with years in prison you will lie on your own mother. I would also like that and the guidelines disallowed look who all are in jail not the heads of drug organizations and they never will because they are not out there like these young men and women who by the way have no outlets 75% of the time, sometimes they just did not make the grade in school or they were teen parents and just go lost in the cracks, but what ever they do not deserve to be locked up for the rest or the majority of there lives when other crimes murder, rape robbery with violence involved and they get parole and less sentences we need to make congress and the courts see the injustice of this. for the sakes of families, the communities and the future.

    I am the mother of a 31 year old daughter who has four beautiful children and has never been in trouble in her life until she became envolved with a certain man. My daughter was dead set against drugs until this person came along. She was sentenced under a conspiracy charge. There were 12 men and 1 woman (my daughter). The DEA agents on this case even stated she was really nothing in this whole investigation. The investigation they speak of was financed at over $1,000.000 (that is money they spent) When the whole thing was done they confiscated a total of appromiately $21,000 total with drugs, land, and vehichles. I can't believe that the federal government spent that much for so little return. My daughter offered help but there was none that she could do. She was sentenced to 49 months. She was given a court appointed lawyer who fell asleep the first visit we had with him. He was of no help at all. Again she has never been in trouble in her life, she is a wonderful mother. They also sent her so far away we can't see her. I can't understand why the federal government is spending so much money on small investigations and then putting these small time offenders is prison for so long. The cost of housing these inmates is atrosious. She stopped using drugs after she went to a intensive program thru the federal government before she even had to turn herself in. Why none of her accomplishments pre-sentence did not help her. Because of mandatory sentencing non of this was taken into consideration. We also have what is known as a hanging judge and he wouldn't look at none of the paperwork he just gave her the mandatory. Is there any help that we can get. Her children are desperately in need of her. She may even lose her only daughter to adoption because Social Services are going by the five year mandatory and they say they can't keep her on that long. They won't let any of the family have her. They come up with all sorts of lies and excuses. I wish someone could please give me information that may help with my daughter. I hope that someone somewhere changes these mandatory sentencing laws. It is not only the defendent who are suffering but their children and families are too. The children alone are worth looking at and how this is affecting them. My two oldest grandsons are so very bitter and angry that they are lashing out. They are good children but they just don't understand. Please if anyone has any information that may help please let me know. Thank You