Pubdate: Mon, 12 Feb 2007
Source: National Journal (US)
Copyright: 2007 National Journal Group Inc
Contact: http://nationaljournal.com/help/feedback.htm
Website: http://nationaljournal.com/njweekly/
Details: http://www.mapinc.org/media/1172
Author: Stuart Taylor Jr.
Note: Stuart Taylor Jr. is a senior writer and columnist for National 
Journal magazine, where "Opening Argument" appears.
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

OPENING ARGUMENT: IRRATIONAL SENTENCING, TOP TO BOTTOM

The spectacle of former CEOs Bernard Ebbers and Jeffrey Skilling 
getting sent to prison for 25 and 24 years, respectively, reminded me 
a bit of Roman emperors throwing criminals to the lions and bears to 
gratify circus crowds. Yes, Ebbers and Skilling are world-class 
crooks. The first helped inflate WorldCom's profits by billions of 
dollars. The second presided over the multiple frauds that caused the 
collapse of Enron, the largest corporate bankruptcy in history. They 
helped squander the nest eggs and kill the jobs of thousands of people.

But does this justify locking them up for longer than we do most 
murderers? (The average federal sentence for murder is less than 19 
years.) Does it call for keeping Ebbers in prison until he is 87 and 
Skilling until he is 73? Those were the no-parole penalties specified 
by the U.S. Sentencing Commission's guidelines, even if both men earn 
the maximum 15 percent reduction for good behavior.

To be sure, these are not the most egregious examples of the savage 
severity of our sentencing laws. Worse still are the long terms 
imposed on the scores of thousands of nonviolent, nondangerous drug 
offenders now rotting in state and federal prisons around the country.

But while we have become numb to the minimum drug sentences mandated 
by Congress since 1986 (which have driven up the sentencing 
commission's guidelines as well), Ebbers' and Skilling's 
near-life-terms are fresh reminders of how wantonly our sentencing 
laws trash the lives of nonviolent convicts at the top and the bottom 
of the income scale.

Indeed, the federal sentences for less-famous white-collar fraudsters 
can be even longer than those of Ebbers and Skilling. "Under current 
law, a corporate officer, stockbroker, or commodities trader engaged 
in a stock fraud causing a loss as low as $2.5 million could be 
subject to a guidelines sentence of life imprisonment," writes Frank 
O. Bowman III, a law professor and former federal prosecutor, in the 
January 2007 issue of The American Lawyer. The Supreme Court has 
limited itself to tinkering with procedures in sentencing cases, 
including two that will be argued on February 20. These cases are 
important. But the Court has already acquiesced in legislatively 
mandated prison terms that are cruel and unusual by any reasonable 
metric. In 2003, five justices upheld no-parole sentences, under 
California's "three-strikes" law, of 25 years for stealing three golf 
clubs and 50 years for shoplifting children's videos worth $150.

So nobody but Congress and the states will fix the mess that they've 
made. A measure of the new Democratic Congress's character will be 
what it does to make sentencing tough but fair. The best start on 
real reform would be to follow the example of another Democratic 
Congress, which in 1971 wisely swept the books clean of another 
20-year-old collection of federal mandatory minimum sentences.

It's instructive to measure the sentences of Ebbers and Skilling 
against the recognized purposes of criminal punishment. Congress 
identified those purposes in the Sentencing Reform Act of 1984-- only 
to riddle the law with unwise exceptions ever since:

"The court shall impose a sentence sufficient, but not greater than 
necessary, ... to reflect the seriousness of the offense; to provide 
just punishment ... to afford adequate deterrence to criminal conduct 
[and] to protect the public from further crimes of the defendant. " 
(Emphasis added.)

The likes of Ebbers and Skilling have already been severely punished 
before getting to prison, of course. They have been branded felons 
and stripped of their wealth by huge legal fees and the ruinous fines 
that are routinely (and properly) imposed on big-shot white-collar 
criminals. Skilling spent more than $40 million on lawyers and was 
assessed another $45 million in fines.

How much prison time, on top of all this, would it take to impose 
"just punishment" on onetime masters of the universe thus brought 
low? Wouldn't three to five years be enough? Wouldn't 10 years be 
more than enough?

What about deterrence? Felon status, financial ruin, plus, say, three 
years behind bars would look like an appalling fate to other 
high-flying corporate titans. When such people cheat, it's not 
because they are thinking, "Why not risk impoverishment, humiliation, 
and lifelong shame, as long as I would have a shot at getting out 
after a few years of hard time?" It's because they think they won't get caught.

The sentencing goal of protecting against further crimes has little 
force as far as Ebbers and Skilling are concerned. Never again will 
either be in a position to cheat stockholders. Nor does either seem 
likely to start holding up liquor stores.

The 1984 law's other main goal was to provide like punishments for 
people who commit like crimes. But prosecutors have made a mockery of 
this by doling out huge, plea-bargained breaks to anyone willing to 
rat out people higher up the chain of command. Skilling got more 
prison time than six comparably culpable but lower-ranking Enron 
executives combined.

One reason for such huge disparities is that when fair-minded 
prosecutors and judges have discretion to use their own best judgment 
- -- which comes down mainly to reducing the sentences of defendants 
who finger others -- they almost never choose the long prison terms 
specified by Congress or the Sentencing Commission.

Symbolic immolations of a handful of the biggest shots among the 
many, many people who join in or facilitate corporate frauds are a 
poor substitute for better-designed regulations to reform corporate 
governance and thus prevent frauds.

The scandals of 2001 and 2002 were not created by a few bad apples at 
the top. They reflected a corner-cutting, grab-the-money, downright 
dishonest culture that infects a dismayingly broad swath of American 
business. Witness the recently revealed thefts from stockholders by 
top executives caught backdating executive stock options at more than 
100 companies. Imprisoning Ebbers and Skilling until they are ancient 
or dead will not stop that sort of thing.

Nor will locking up scores of thousands of nonviolent drug couriers 
and other small-fry characters make a dent in the illegal drug 
market. (The Bureau of Justice Statistics reports that 251,000 state 
and 87,000 federal prisoners were serving drug sentences as of late 
2005.) The congressional experiment that began in 1986 -- long 
mandatory minimum prison terms for anyone with even a minor role in a 
conspiracy to sell specified quantities of illegal drugs -- has been 
a miserable failure. The rhetoric has been about nailing drug 
kingpins and violent traffickers. The reality has been about ruining 
the lives of potentially salvageable people such as these:

* Dana Bowerman, now 36, became addicted to methamphetamines at age 
15. The onetime A student supported her habit by joining a north 
Texas meth ring of which her father was a leader. The first-time 
offender had $11 in her bank account when she was arrested. In 2001, 
she was sentenced to more than 19 years based on the quantity of meth 
that the ring had distributed. She overcame her addiction in prison, 
but she has 12 more years to serve.

* Sabrina Giles, now 24, a mother, and also a first-time offender, 
chose a bad boyfriend. He was a meth dealer in New Mexico. When he 
was arrested in her home, police found 49.95 grams of meth, 21.1 
grams of marijuana, bags, scales, and a drug ledger belonging to the 
boyfriend. They also found a handgun in the kitchen drawer that Giles 
said she kept for self-protection. All of this brought her a 12-year 
sentence in 2004.

* DeJarion Echols, now 24, father of two girls, with one petty-theft 
conviction as a juvenile, was caught with 44 grams (less than 2 
ounces) of crack cocaine in his Waco, Texas, home. He also had $5,700 
in drug proceeds, and an unloaded rifle under his bed. He confessed 
and cooperated with police but was given a 20-year mandatory minimum 
sentence in 2006.

* Alva Mae Groves, now 85, of rural Smithfield, N.C., sold eggs, 
candy, and soda to neighbors to help support two young grandchildren. 
She had a 60-day suspended sentence in 1994 for stealing $8.09 worth 
of stuff from a Food Lion. She was also involved in a large crack 
ring reportedly headed by her son, with whom she shared a home.

She was convicted of participating in a conspiracy of 16 people that 
sold 1,887 grams of crack for $15,930 in food stamps. A gun was found 
in her home. She got more than 24 years in 1995. Her projected 
release date is 2015, when she will be 94.

Such are many of the world-record 2.2 million people populating our 
nation's prisons and jails. Justice aside, there are better ways to 
spend scarce tax dollars.
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MAP posted-by: Beth Wehrman