Pubdate: Sun, 25 Jul 2004 Source: Montgomery Advertiser (AL) Copyright: 2004sThe Advertiser Co. Contact: http://www.montgomeryadvertiser.com/ Details: http://www.mapinc.org/media/1088 Author: Jessica M. Walker, Montgomery Advertiser MANDATORY RULES FOR JAIL TERMS UNDER FIRE No one claims Marnail Washington was innocent. Not his lawyer, not the judge and not Washington himself, who entered a guilty plea to federal gun and drug charges late last year. But the judge who sentenced Washington, a 22-year-old, first-time offender, called his 40-year prison term the "worst and most unconscionable" sentence he had given in more than two decades on the bench. The average federal sentence for drugs is 5 years and 9 months, and for a firearm offense the average is 5 years, according to the U.S. Sentencing Commission's 2001 annual report. But U.S. District Judge Myron Thompson's hands were tied. The rules that govern federal sentences can leave judges with little to no wiggle room when it comes to sentencing, despite the facts of the case. If Washington had come through the court system a year later, the environment might have been different. There have been no sentencings in the Middle District of Alabama since a June U.S. Supreme Court ruling that turned the federal sentencing system on its head. In Blakely v. Washington, the court challenged the constitutionality of using guidelines in sentencing, saying that the factors that go into a sentence should be proven beyond a reasonable doubt to a jury, not decided by a judge. And in the post-Blakely world of sentencing anything can happen as federal judges nationwide are left trying to cope with a system in which the bedrock of sentencing has been cracked. On June 29, less than a month after the Blakely decision, Paul Cassell, a federal judge in Utah, declared the guidelines unconstitutional, making him the first federal judge to do so. Any many judges are straying from the guidelines, now that they've been called into question. In response, the U.S. Judiciary Committee held hearings on the Blakely decision, and U.S. Sen. Jeff Sessions, R-Mobile, helped chair the hearings. "I think this is the most dramatic, disruptive decision involving criminal law in the history of this country," said Sessions, a former prosecutor who called himself a "very strong supporter" of the guidelines. Most of the guidelines used today were developed in the 1980s, to ensure similar sentences for similar crimes and to eliminate racial discrepancies in sentencing. Under the guidelines, each crime has a base level sentence. From there, other factors are added in, such as the use of a firearm in the crime, criminal history and the defendants' willingness to accept responsibility for the crime. These factors determine a range of sentences for the defendant that the judge must adhere to, although under certain circumstances, the law allows for judge to depart from the range. Barry Teague, Washington's attorney, blamed the sentencing system for his client's long sentence, and said there was nothing he could have done. "I think the sentencing guidelines are a cookie-cutter that doesn't work well when you're dealing with human beings. More often than not, it seems to be an unfair, unjust result," said Teague, who is appealing Washington's conviction, but not on the basis of the sentencing. But Sessions pointed out that the guidelines were fairer than none at all, because everyone, rich, poor, black and white, is treated the same under them. "I believe in the sentencing guidelines. They're about fairness, objectivity and eliminating racial bias," said Sessions. Although there might be areas of the guidelines that need tweaking, he said, "we shouldn't ditch the system." Rodney Brown of Montgomery also feels the federal guidelines and mandatory minimums turn a blind eye to those convicted of crimes. Brown has been friends with John Allen Dees since their days at The Montgomery Academy. Later, they went to the University of Alabama, where they joined the same fraternity. But after graduation, Dees, who struggled with migraines, turned to drugs, Brown said. On April 23, 2002, Dees was caught with cocaine and a gun, which he had a license to carry. Brown said that Dees carried a gun, in part, because of death threats to his family. He is the nephew of Morris Dees, founder of the Southern Poverty Law Center, which tracks hate groups and works to expose and end white supremacist groups. Dees was prosecuted federally and pleaded guilty. Despite the fact that he had no criminal record and despite an outpouring of about 40 people that showed up at his sentencing, Dees got the mandatory sentence of five years, according to court records and Brown. "There's nothing you can do. It's a mandatory sentence. There's no amount of money you can throw at it to make it go away," Brown said. But unlike Washington's sentence, Dees' sentence is in line with the average penalty for drug offenders. Washington's sentence was unusual in that it was the result of a cocktail of legislation, a Supreme Court decision and the guidelines. He was first arrested on Feb. 7, 2003, in front of Sidney Lanier High School, where he was found with 33 grams of crack cocaine and a 9 mm handgun in the console of his truck, according to court records. On Feb. 13, 2003, police executed a search warrant at 111 Canna Drive, where Washington and four others were located. During the search, one of the men in the house fired a gun, and an officer's ballistic shield shattered, injuring his face, according to court records. Washington was found with more crack cocaine in his pocket, and there were several firearms in the house. Washington was charged with five counts for the incidents: one count of possession to distribute crack cocaine within 1,000 feet of a school, one count of possession of a firearm within 1,000 feet of a school, one count of possession of more than 50 grams of crack cocaine with the intent to distribute and two counts of possession of a firearm in relation to a drug-trafficking crime. Washington had no criminal record, and would have been eligible for Youthful Offender status if he had been tried in state court because of his age and his status as a first-time offender. But in federal court, he was sentenced as if he were already a convicted felon. A 1993 Supreme Court case says that when a defendant faces multiple charges from offenses on different dates, the offenses on the second dates count as a second offense. Because the law allows little flexibility for judges to adjust or lower sentences and because some of Washington's crimes carried mandatory minimum sentences, Thompson gave Washington 40 years in prison, despite his feelings that it was unjust. "From the point of view of a 22-year-old, 40 years is essentially a life sentence," Thompson wrote in an opinion drafted to clarify why he gave the sentence. "Society generally reserves such harsh sentences for its most dangerous or incorrigible offenders, such as murderers or career offenders," Thompson wrote. But in federal court, drugs and guns will, on average, get a defendant a higher sentence than sexual abuse, assault or manslaughter. The average drug and firearm sentences are 69 months and 66 months, respectively, compared to average sentences of 59 months for sexual abuse, 31 months for assault and 33 months for manslaughter. Within the guidelines, certain factors trigger mandatory minimum sentences, meaning the judge cannot hand out a sentence lower than a designated time period. "The particulars of an individual or an offense cannot be taken into account in determining a sentence," said Mary Price, an attorney for Families against Mandatory Minimums, a nonprofit organization that seeks an end to mandatory minimum sentences in state and federal courts. Price said the sentencing rules came from politicians' desire to take a hard line on crime. "I think tough on crime still sells on Capitol Hill. It still has some appeal, although judges and lawyers and groups like ours are building resistance against them," she said. As groups like Price's try to counter efforts to ratchet up federal sentences, Washington will continue to carry out the next four decades of his life in prison, at a cost of $900,000 to the public, according to U.S. Bureau of Prisons' estimates. But the cost to his family and his infant son, who will grow up without a father, will be "incalculable," Thompson wrote. - --- MAP posted-by: Jo-D