Pubdate: Thu, 13 Jan 2005
Source: Albuquerque Tribune (NM)
Copyright: 2005 The Albuquerque Tribune
Author: Carol M. Parker
Bookmark: (Mandatory Minimum Sentencing)
Note: Parker is an Albuquerque lawyer


Judges Deserve Discretion In Sentencing, Not Mandatory Absurdity

Federal prison sentences have become front-page news. Over time, the
federal sentencing laws have evolved until today they are no longer
fair or just, and they are a scandalous waste of your federal tax dollars.

To understand the problems with the present sentencing laws, it is
helpful to have some historical perspective. In the 1970s, there were
concerns that defendants who committed similar crimes sometimes
received different sentences from different judges or in different
areas of the country.

In some instances, facts specific to the case led to the different
sentences. But in other cases, there were allegations that differences
were due to improper considerations such as race.

To promote fairness in sentencing, Congress passed federal sentencing
guidelines. During the same period, Congress implemented mandatory
minimum sentences for crimes that involve guns and drugs.

While these measures had the best of intentions, they have combined to
produce grotesque results. Punishments do not fit the crimes
committed, and the sentencing scheme wastes federal resources. The
arbitrary results caused by these ostensibly sensible laws are best
shown by examples.

Defendant A killed his mother and burned her body on a manure pile,
until she could only be identified by her kneecap, eyeglasses and
jewelry. The defendant pleaded guilty to voluntary manslaughter. He
had a long prior criminal history. Although the maximum sentence for
voluntary manslaughter is 10 years, the federal sentencing guidelines
limited the judge to imposing a sentence of no more than 6 years.

Defendant B was a Sandoval County fair queen who loaned her cell phone
to her cousin's boyfriend. Unknown to her, he was the focus of a
federal drug investigation. She later lied about letting him use her
phone, and the government complained her lie obstructed their
investigation. She had no prior criminal history. She was prosecuted
and sentenced to 3 years.

Defendant C sold a few hundred dollars worth of marijuana to an
undercover informant on three occasions. Each time he had a gun at the
transaction, but he never brandished the weapon, and no one was
killed. Federal law required a mandatory minimum sentence of 55 years.
He had no significant prior criminal history.

Without dispute, each defendant committed a crime. But the resulting
sentence was surreal when compared with the other defendants. Is lying
about someone using your cell phone really half as bad as killing your
mother and burning her body on a manure pile? Is carrying a weapon
under circumstances in which someone might be killed really eight
times worse than actually killing someone?

In fact, the sentence meted out to Defendant C was longer than if he
had hijacked an airplane, raped a child or kidnapped someone. As if
the disproportionate nature of Defendant C's sentence was not bad
enough, the cost of 55 years of incarceration for such a relatively
modest crime will be more than $1.5 million.

Considered as a whole, these sentences are arbitrary and not in
keeping with any system of justice a reasonable person could support.

I am not alone in my concerns. The judge in Utah who sentenced
Defendant C was so appalled by the sentence that Congress required him
to impose that he wrote a 32-page opinion explaining the mechanics of
federal sentencing schemes and wrote an appeal for presidential
clemency on the defendant's behalf. A New York judge resigned rather
than continue to serve in such an unjust system. The American College
of Trial Lawyers has called the U.S. sentencing guidelines an
experiment that has failed.

The problems caused by the present rigid sentencing laws suggest some
fundamental principles that should guide Congress in developing better

Congress should legislate general policy solutions and allow judges to
make the final decision about sentences within non-mandatory
guidelines set by Congress. Congress cannot consider the specifics of
each individual case and impose a just sentence via legislation. If a
punishment is to fit the crime, Congress must leave federal judges
with enough discretion to achieve fairness and justice in each
individual case.

Discretion is not only a necessary part of sentencing; someone with
experience should wield it. Before sentencing guidelines were
implemented, sentencing discretion was placed in the hands of judges -
people respected for their legal experience and abilities, appointed
by the president and consented to by the Senate. Now these respected
jurists have been converted into automatons, but the discretion has
not been purged from the system. Instead, discretion operates every
time an assistant U.S. attorney, often just out of law school, decides
what crimes to charge a defendant with or to accept a plea bargain.

The best protection against unwise use of discretion is open and
public application. When judges use discretion, they use it in open
court where all can see the results. Instead, what we have now is
discretion operating behind closed doors in plea negotiations. Secret
discretion is not an improvement over discretion used in public.

It is often said, "If you want peace, work for justice." At this time
of year, when our thoughts are so often on wishes for peace, I hope
Congress will dedicate its efforts in the coming year to work for
justice in federal sentencing.

Parker is an Albuquerque lawyer.
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