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TigerHawk tells us that by receiving only a 3 year sentence Wesley Snipes got off easy:

And for my fellow libertarian conservatives who are offended, I offer the friendly reminder that Pete Rose served five months in federal prison for defaulting on approximately 2% of the taxes and penalties owed by Wesley Snipes.

Considering that federal sentencing guidelines -- which law-and-order conservatives loudly champion as the remedy for "soft judges" -- for other white collar offenses have massively increased jail time for purely monetary crimes (many of which have much more ambiguous evidentiary and legal standards than rank tax evasion), three years seems incredibly light.

TH concedes that white-collar sentencing has “gone completely overboard” but says that by recent standards Snipes would have gotten ten years if he were some CEO.

Actually, anyone convicted of the same thing as Snipes would have gotten 36 months or less. Three years - that is, a maximum sentence of 1 year for each misdemeanor conviction, then stacked or run consecutively – is the most that Snipes or anyone else similarly situated could have received. 

The maximum sentence was a likely result here, because once the ‘appropriate’ punishment for the acquitted conduct was factored in, Snipes was theoretically way over the guidelines for the maximum.

But it’s hard to see where one can argue that the max and getting off easy – for misdemeanors again mind you – are even close to the same logical ballpark.

As for the analogy to Pete Rose’s situation, he probably received some sort of downward departure for acceptance of responsibility and pleading guilty. And his sentences – yes, plural – all ran concurrently. But let’s ignore that.

Is the 2% figure supposed to mean that Snipes should have gotten a sentence 50 times longer than Rose? 250 months? Almost 21 years? If we start following that logic, we’ll lead the world in incarceration rates.

UPDATE.  I should have read the comments before publishing. Here’s part of one:

Snipes is a sh*tty actor and criminal. He deserves the long arm of the law.

Begs the question: Should Al Pacino get a lower sentence than Steven Seagal if they were both caught cheating for roughly the same amount of taxes? And do we count total number of Oscar nominations, or just wins when it comes to lesser punishment?

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Brian Williams had a scare piece on NBC Nightly News last night about the current ‘debate’ at the U.S. Sentencing Commission regarding making the new Federal Sentencing Guidelines for crack cocaine retroactive. (Apologies: the only link I could find to the piece forces you to watch a 15 to 30 second commercial first.)

Williams starts off with:

We learned today that thousands of serious drug offenders who are right now in federal prisons could soon be returned to the streets despite serious objections by the U.S. Justice Department.

Sounds bad – downright scary doesn’t it? But maybe they are serious drug offenders because they received outrageously long sentences along the lines of the 100 to 1 ratio for crack vs. powder cocaine in the first place. The report acknowledged that the Sentencing Commission saw this as

…a way to reduce the wide disparity that produces harsher sentences for crack offenders, over 80% of whom are black, than for powder cocaine offenders…

NBC mentions that there is a ‘disparity’ but doesn’t mention the actual ratio. Time for some more scare tactics:

…but so many would be out in such a short period of time that the Justice Department warns it could drive up violent crime.

Who can NBC find to back this claim? Let’s try Deborah Rhodes, U.S. Attorney for the Southern District of Alabama, whose previous claim to fame was being touted by Kyle Sampson as a possible replacement for Carol Lam, one of the U.S. Attorneys targeted by Karl Rove/Alberto Gonzales/Harriet Myers.

What is Ms. Rhodes take on the subject?

“Crack defendants as a whole generally have a higher criminal history and a greater use of guns and violence in the manner that they distribute their cocaine.”

Than whom? Than powder cocaine defendants? Got any stats to back that up? And why not just convict and sentence them for their violent acts?

Certainly not a higher level of violence than, say, murderers. Or anyone convicted of a violent crime (who presumable have a 100% use of violence associated with their offense). 

…supporters of the plan, including many federal judges, say it would simply make retroactive a change the commission made two weeks ago for sentencing future federal drug offenders.

NBC puts on Marc Mauer, executive director of the Sentencing Project, and we finally get a dose of common sense:

“It’s difficult to explain to anyone why somebody convicted a month ago should have a stiffer sentence than somebody convicted today of exactly the same offense.”

I don’t know that it’s difficult to explain. But then again, absurdity, arbitrariness and capriciousness are accurate but not good explanations.

The piece mentions that ‘many of those getting out will have served ten to fifteen years’ and that they will be getting an average reduction of 27 months from their sentence. How about some talk about the economics of the situation?

An extremely low estimate, of $25,000 per year per federal inmate, would result in a cost savings to the public of over a billion dollars. That would have been worth throwing in the report.

And how about comparing their 10-15 year sentences with the average federal sentence for murder? (19 years.)  Think more folks dragged down by the law of parties and the law of ‘conspiracy’ were ‘on average’ more violent than all those murderers? Seems unlikely.

Also see:

• Retroactivity and the Federal Sentencing Guidelines
• Federal Public Defender’s Memo on Calculating the New Guidelines

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From today’s New York Times article “Rules Lower Prison Terms in Sentences for Crack”:

Crack cocaine offenders will receive shorter prison sentences under more lenient federal sentencing guidelines that went into effect yesterday.

The United States Sentencing Commission, a government panel that recommends appropriate federal prison terms, estimated that the new guidelines would reduce the federal prison population by 3,800 in 15 years.

The new guidelines will reduce the average sentence for crack cocaine possession to 8 years 10 months from 10 years 1 month. At a sentencing commission hearing in Washington on Nov. 13, members will consider whether to apply the guidelines retroactively to an estimated 19,500 crack cocaine offenders who were sentenced under the earlier, stricter guidelines.

Given that we’re talking about subtracting one year from the ‘normal’ decade in prison for a federal drug offense, it would make sense to replace the phrase “more lenient” with “less outrageous” in that first sentence. Still, this is a small step in the right direction.

Solomon Moore’s article also touches on the issue of whether or not federal prisoners sentenced under the old guidelines will be able to take advantage of the new rules. In other words, since the U.S. Sentencing Commission has decided that sentences were too long and need to be reduced, will it do you any good if you have already been sentenced unfairly/unreasonably?

The predictable response from the D.O.J. on this issue:

Department of Justice officials said yesterday that applying the new guidelines retroactively would erode federal drug enforcement efforts and undermine Congress’s role in creating sentencing policy.

“The commission is now considering applying the changes retroactively, something that Congress has not suggested in any of the pending bills,” wrote a department spokesman, Peter Carr. “As we state in a letter filed with the commission today, we believe this would be a mistake, having a serious impact on the safety of our communities and impose an unreasonable burden upon our judicial system.”

Wrong, wrong, and, well, at the end of that statement we see the real reason they oppose it.

First, it won’t erode federal drug enforcement efforts… it will be part of the basis of those efforts.

Second, it doesn’t ‘undermine Congress’s role in creating sentencing policy’. The United States Sentencing Commission was set up by Congress. The USSC was created by the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984.

You can make a great argument that Congress did a terrible job when it passed those ‘reforms’; but you can’t say it wasn’t the Congress that did it.

Finally, what does D.O.J. mean when it says this will ‘impose an unreasonable burden upon our judicial system’?  Deciphering this will lead us to the real reason D.O.J. opposes making the new guidelines retroactive.

Basically the Federal prosecutor’s office is admitting that it’s too lazy to get things right. Yes, it may average out to ‘only a year’ reduction for those twenty thousand or so that are still incarcerated under the old rules, but each and every one of them has plenty of time to apply to reduce their sentence, and they will do so.

Gosh, that’s just too much work for the Department of ‘Justice’.

Even this argument fails though – I mean, it fails because it has no basis in fact, not just that it’s mean spirited and motivated by sloth. As Denise Cardman, Deputy Director of the American Bar Association wrote:

If the amendment is not made retroactive, the courts will likely be inundated with a large number of pro se filings using various vehicles, such as 28 U.S.C. §§ 2241, 2255, once the amendment goes into effect.  

The same number of motions filed under Section 3582(c) would be a far more orderly and effective manner of managing the inevitable requests for relief, creating “cleaner” and more uniform decisions. 

Indeed, 18 U.S.C. § 3582(c)(2) provides that the court may reduce the term of imprisonment “on its own motion.” Under this provision, a court could enter a blanket order reducing all sentences imposed under the former guideline. 

Moreover, post-Booker practice demonstrates that the federal criminal justice system is fully capable of revisiting many thousands of sentences when justice so requires.

A blanket order reducing all sentences retroactively will indeed be a much better use of judicial resources than, say, twenty thousand or so pro-se motions.

And, it has the added benefit of… being the right thing to do.

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The U.S. Supreme Court denied cert in Angelos v. U.S. today, effectively affirming this defendant’s 55 year sentence for being set up by the government to sell marijuana, and, according to the snitch who was deal-making for his own liberty, carried a gun in an ankle holster.

Three controlled buys of 8 ounces of marijuana, and some not-so-reliable testimony about whether you carried a weapon (but did not use or exhibit it) equals fifty five years in prison on this particular occasion.

Originally offered sixteen years in the federal penitentiary if he plead guilty to the offense, Angelos turned the deal down because he insisted that he had not carried the weapon. (That’s why the snitch testimony is an important factor here – there’s good reason to disbelieve any paid testimony of a Government witness.)

By exercising his constitutional right to dispute this aggravating factor, Angelos rolled the dice and lost in a big way. I’m sure this was in part because the original 16 year prison offer was ridiculously high, even if he were guilty exactly as accused.

A defendant indicted on a state charge in Austin, Texas under the same set of facts, would likely be facing a State Jail Felony charge, where his maximum punishment would be five years (day-for-day, no parole) in a state jail facility. I’m guessing, obviously, but the offer would probably be for probation. (There is some chance a Travis County prosecutor might try to enhance it to a Third Degree Felony, based on the weapon, which would double the maximum to ten years, but then leave open a possibility of paroling from TDCJ. Again, I think probation would be a likely outcome.)

And the stark contrast with the punishment range under Texas rather than Federal law is even more surprising, given that Texas has notoriously high punishment ranges for marijuana and controlled substance offenses. In most states, a defendant in Angelos’ situation would be facing substantially less time than here in Texas.

For readers that have gotten this far, but are still reacting to this story with a “do the crime – do the time – and to heck with him” mentality?... Please read this Progressive article humanizing Weldon Angelos, then get back to me.

You have to know something is very wrong, when the sentencing judge decries the penalty he must give a defendant, and goes so far as to list much lower maximum sentences available in other types of federal cases:

Hijacking an airplane: 25 years

Second-degree murder: 14 years

Kidnapping: 13 years

Rape of a 10-year-old: 11 years

Remember, we are talking about 24 ounces of marijuana here…

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As it always happens in criminal cases, there is a dispute about whether there was an attempt by the two defendants to “join the mile high club” in the first place, and exactly what words one of the defendants said when “interrupted” by the stewardess.

But this is no laughing matter. Carl Persing and Dawn Sewell are facing up to twenty years in a federal penitentiary for, well, just read the probable cause affidavit.

Without excusing these particular defendants’ behavior, Daniel Solove asks whether the federal statute criminalizing Interference with Flight Crew Members or Flight Attendants, 49 U.S.C. 46504, is overbroad both in general and as applied in this case:

An individual on an aircraft … who…interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both.

Although the couple's angry behavior is problematic, § 46504 strikes me as way too broad -- perhaps so broad as to be unconstitutionally vague. What exactly does "intimidating" a flight attendant mean? What does "interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties" mean? Being an obnoxious passenger should be punished, but the hefty possible penalties in this statute seem to be designed for passengers who pose serious threats, not passengers who merely spark the ire of a flight attendant.

This is a good example of taking the worst possible behavior that could conceivably fit a statute, attaching a huge penalty range to it, and then applying it in much lesser situations. America, land of overpunishment, home of the not-so-free…

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Eric Sterling, former Counsel to the U.S. House of Representatives Committee on the Judiciary from 1979 through 1989, was a principal aide in developing the Anti-Drug Abuse Acts of 1986 and 1988. Since then, he has been president of the Criminal Justice Policy Foundation. From his opinion piece (Take Another Crack at That Cocaine Law) in today’s L.A. Times:

One of our most infamous contemporary laws is the 100-1 difference in sentencing between crack cocaine and powder cocaine…Working for the House Judiciary Committee in 1986, I wrote the House bill that was the basis for that law. We made some terrible mistakes.

Those mistakes, aggravated by the Justice Department's misuse of the penalties, have been a disaster. Conventional wisdom is that the 100-1 ratio needs to be repealed. But that's an inadequate fix.

He proposes not only eliminating the powder vs. crack cocaine disparity, but raising the amount necessary to trigger federal prosecution to 50 Kilos of cocaine (unless the Attorney General approved prosecution of a lesser quantity).

For more from Sterling read his paper “Getting Justice Off Its Junk Food Diet”, where he explains, among other things that only 7 percent of federal cocaine cases are directed at high level traffickers, and that a third of federal prosecutions involve average cocaine amounts the weight of a candy bar.

(Hat Tip: How Appealing)

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Sentencing Law and Policy links to the submitted testimony of several witnesses at next week’s congressional hearing on the disparity between crack and powder cocaine sentencing. Berman also points us to the statement of Chuck Canterbury, National President of the Fraternal Order of Police, the largest law enforcement labor organization in the United States, who argues that he knows how to fix the problem.

I read Canterbury’s entire statement, and urge you to do so as well (I can’t reprint the whole thing here, of course, but welcome readers to make sure that my use of ellipses – “…” – aren’t an attempt by me to distort what he is saying).

Most of it is fairly shocking on its face, but I can’t resist the urge to comment:

Measures like the Anti-Drug Abuse Acts of 1986 and 1988 put stiffer penalties into place for those who would bring the poison of drugs and violence into our neighborhoods and communities. In the experience of the FOP, tougher penalties work. They worked in the 1980s and 1990s and were a very significant factor in the ability of law enforcement to counter the “crack” explosion…

OK, so part of his thesis is the tired refrain, “What we’ve been doing in the 80’s and 90’s has been working so well…” Let’s see if he can manage to stick to that story.

Mandatory minimum sentences… mean longer sentences for the worst offenders.

Um, in the sense that mandatory minimum sentences mean longer sentences for all offenders, I suppose he is technically correct. Of course, those longer minimum mandatory sentences come down on the “least of the offenders” as well, so his statement, while arguably true, is misleading at best.

The Commission’s findings in the 1997 report also stated that crack cocaine is… particularly accessible to the most vulnerable members of our society… As a result, Federal sentencing policy must reflect the greater dangers associated with crack and impose correspondingly greater punishments.

If this isn’t shocking on its face, please reread this last quote again. Outloud. Then read it to a friend and ask them their reaction to it.

The Fraternal Order of Police would support increasing the penalties for offenses involving powder cocaine through a reduction in the quantity of powder necessary to trigger the 5- and 10-year mandatory minimum sentences, thereby decreasing the gap between the two similar offenses and addressing the concerns of those who question the current ratio without depriving law enforcement with the tools they need to control the possession, use, and sale of powder cocaine.

The 5-year mandatory minimum sentence can be triggered by 5 grams of crack cocaine. How much is 5 grams of something? 5 Sweet-and-Low packets worth of cocaine is 5 grams. So his solution to the disparity problem…increase the penalties for powder, rather than decreasing them for crack! So the disparity is a problem, one best solved by even more prison building.

This year alone, more than 5.5 million Americans will use cocaine, and 872,000 will try it for the first time. Similarly, 1.4 million Americans will use crack cocaine and 230,000 will try it for the first time. These are very disturbing numbers. And despite indications that cocaine production has stabilized since 2002, U.S. law enforcement authorities seized 196 metric tons of cocaine in 2005—a five year high.

But wait a minute… didn’t you start off by telling us that what we’ve been doing for thirty years plus has been such a rousing success? Now you’re telling us that cocaine use has either stabilized or increased. So when you want to brag about the great job you’re doing, then “things are getting better”. But when it comes time for the scare tactics and the pleas for more funding, then “things are staying the same or getting worse”.

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Doug Berman points us to the two latest decisions where defendants receiving above guidelines sentences lost their appeals in federal court. Here’s the gist of it: defendants appealing higher than the maximum sentences “suggested” by the Federal Sentencing Guidelines continue to lose appeals. (On a side note, the Government almost always wins when it appeals below guidelines sentences, and "wins" higher sentences in those cases.)

In one of the cases, U.S. v. Bishop, the defendant had previously been convicted of aggravated kidnapping, burglary and rape. He was incarcerated from 1985 until 2003 on those charges, when he was released because DNA evidence proved that he was innocent of the rape charge. It was determined that he would have been released in 1995, but for the wrongful incarceration on the rape charge: an extra eight years he had to serve for an eventually reversed wrongful conviction.

The Federal District Court judge saw fit, however, to characterize the guidelines inability to further enhance his new sentence based on the overturned rape, as “a windfall from the standpoint of looking at his criminal history calculation”.

That’s right: the DNA exoneration that led to eight extra years of imprisonment was a “windfall”, because the advisory guidelines now understated “Mr. Bishop’s criminal history with respect to the seriousness of his convictions for the aggravated kidnapping and burglary charges”.

Isn’t it at least possible that had he been able in 1985 to prove his innocence on the rape charge that he may have been acquitted as well on the other charges stemming from that incident? OK, well let’s ignore that for now…

How about this one… shouldn’t some sort of downward departure be available for a guy that can demonstrably prove he unjustly served 8 extra years for his last offense?

Nope. The federal judiciary can decide that since your prior wrongful conviction is not taken into consideration by the guidelines, it can still be the basis for an upward departure… since, after all, it’s a “windfall” that the guidelines themselves don’t hold prior wrongful convictions against you.

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Doug Berman justifiably criticizes a Seventh Circuit opinion today that classified “failing to report to a county jail” as a “crime of violence” for Federal Sentencing Guidelines purposes. It  makes the difference for this particular defendant of being subjected to the mandatory 15 year minimum sentence under the armed career criminal statute.

I have discussed before here and here the Kafkaesque reality that, in the federal system, prior state offenses like evasive driving can qualify as violent crimes to trigger severe sentence enhancements. Today's new Kafka chapter in this criminal history story comes from the Seventh Circuit: a split panel decided in US v. Golden, No. 06-1362 (7th Cir. Oct. 25, 2006) (available here), that a defendant's prior "failure to report to county jail in violation of the Wisconsin Criminal Code" qualifies as a "violent felony" to trigger a mandatory minimum sentence of 15 years' imprisonment under the armed criminal career statute, 18 U.S.C. § 924(e).

Well, what does the statute itself say? 18 U.S.C. § 924(e)(2)(B) defines a “violent felony” as one that:

(1)   has an element the use, attempted use, or threatened use of physical force against the person of another, or

(2)   is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

So how does this court come to the determination that failing to report to a county jail constitutes a “violent felony” for guideline purposes? It quotes from U.S. v. Franklin, 302 F.3d 722 at 733, “the benchmark should be the possibility of violent confrontation, not whether one can postulate (a) nonconfrontational hypothetical scenario”.

The decision spells out that since recapture of the defendant may involve the use of force or danger that this qualifies as a crime of violence. I side with the dissenter who pointed out that a probation violation that led to a warrant, and therefore the possibility of a violent confrontation, could qualify under this analysis as well. Do we really need to go so far as to punish people for what they might have done but didn’t? (There was never any evidence in the case that the defendant’s recapture involved any violence at all.)

Unfortunately, the time for this lament has probably long since passed, but I believe that proper statutory construction demands that the courts take into account the other four types of crimes listed, in determining whether a state offense is a violent felony. After all, how similar is “failure to report to jail” to burglary or arson or extortion or crimes involving explosives?

Interpreting statutes should also require looking at legislative intent. Any evidence that Congress believed this law would lead to this absurd result?

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In United States v. Hernandez-Rodriguez, decided October 9, 2006, the fifth circuit addressed whether a prior conviction under Texas state law for Deadly Conduct justified a 16 level crime-of-violence increase under Federal Sentencing Guidelines.

After pleading guilty to Illegal Reentry, the defendant’s base offense level of eight was tripled by the crime-of-violence adjustment. Since Deadly Conduct was not one of the enumerated offenses, the increase could only be justified if one of its elements was “the use, attempted use, or threatened use of  physical force against the person of another”.

Since the defendant had pled to § 22.05 (b)(1), which covers discharge of a firearm at individuals, rather than (b)(2), which covers discharge of a firearm at a habitation, building or vehicle, the court concluded that it met the requirements for a crime of violence.

This case illustrates the need for lawyers to be creative when seeking plea bargains.  It's too late to turn back the clock, but perhaps the defense lawyer in the first case could have sought a plea agreement to (b)(2) instead of (b)(1).  That might have saved this future defendant many years off his next prison sentence.

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