No "Life Plus Cancer" In The Federal System

What will they do to Ken Lay? Give him life plus cancer?

That’s from Jeralyn Merritt, on July 13, 2005, the first known use of the phrase “life plus cancer”*. Her question was not as macabre as it sounds now, since we know that Lay met an untimely death, some guess by suicide, in between his own conviction and sentencing date. No, she was commenting on the 25 year sentence that had just been handed out to Bernie Ebbers, and asking how much Lay would get, since the amount of his fraud dwarfed Bernie’s.

Jeralyn is credited with coming up with the question, what are they gonna do… give him life plus cancer? Greenfield often uses the life plus cancer conceit in discussing proportionality of and disparity between sentences, especially white collar or other non violent crimes. How much is enough? If Mr. X gets 10 years, and Mr. Y’s crime is 4 times as bad mathematically, shouldn’t Mr. Y get 40?

Which begs the question what to do with Mr. Z? His financial crimes make X times Y look like petty theft. So life it is. And the next guy down the line, who outdoes Mr. Z – what to do but life plus cancer, right? What else is there?

So today I break open my Federal Sentencing Law & Practice, 2010 Edition, which comes with a handy laminated sheet of the sentencing table. You know, find your criminal history one through six, horizontal axis. Find your offense level one through forty three, vertical axis. It’s as easy as a multiplication table, your sentencing range is…… nearly predetermined, very little thinking required. Which is not to say that crim history and offense level are automatic by any means; just that once you’ve done that, tada! Presumptive guidelines range.

Flipping the handheld chart over gets you the application notes for the table. Note 2 jumped out at me:

In rare cases, a total offense level of less than 1 or more than 43 may result from application of the guidelines. A total offense level of less than 1 is to be treated as an offense level of 1. An offense level of more than 43 is to be treated as an offense level of 43. [emphasis added]

I had to laugh. For those of you without a table handy, an offense level of 43 is the highest possible, and it results in a presumptive guidelines range of Life, no matter the criminal history category:

 Level                 Life    Life    Life    Life    Life    Life

So there’s no level forty four, no forty three and a half. No matter how many adjustments you add to the base offense level, you’re going to cap out at a forty three. But there’s actually an application note that says, in effect, there’s no such thing as life plus cancer in the federal system.

[* according to the 45 to 60 seconds I spent Googling it. Feel free to correct me.]


Sometimes, OK, I admit it, sometimes late at night I stalk other defense lawyers on PACER

PACER is an acronym for Public Access to Court Records Online, and it provides electronic internet access to pleadings and motions that aren’t sealed in federal cases; my interest being in federal criminal (rather than civil) cases.

Every so often I strike actual gold with my internet research. For example, I discovered an interesting legal argument for a downward departure in a sentencing memo by researching Scott Greenfield cases on PACER in a recent mail fraud case. Short version? I plagiarized incorporated his request that the Judge consider, for 3553(a) purposes, the lower guidelines at the start of a continuing offense than those in place at the time of the plea. [**Tangent continued in the comment section.]

So tonight, while browsing, I come across this gem in a filed factual basis. After starting with the obligatory “had this matter proceeded to trial”, many paragraphs later we have:

On or about [Some Date In Time], the jail recorded a phone call from inmate DEFENDANT to his brother BRO. DEFENDANT told BRO the names of drug customers who owed him money as well as the amount that was owed.

They also discussed the need to get SOME GIRL to claim the “shit” (cocaine) that was the subject of DEFENDANT’S arrest as she would get probation. 

DEFENDANT told BRO that he still had some ounces of cocaine which he referred to as “onions”.

Number one? You’re talking on a jail phone. You Are Being Recorded. Number Two? Talking in “code” is for TV/The Sopranos. In the grand scheme of things, it’s not that hard to tell you aren’t talking about onions. And yes, the defendant in question was convicted of conspiracy to distribute narcotics. 

Guilty Judges Say Thanks But No Thanks To The Guidelines

Other criminal law bloggers already weighed in last month when the news reported that two juvenile court judges in Pennsylvania took millions of dollars in bribes to automatically send juvenile offenders to private detention centers, in other words, to prison.

In a fit of disgust combined with blogging laziness I refrained from writing about the story at that time. (Blog envy may have had something to do with it as well. Fellow Austin criminal lawyer Lance Stott had already summed it up best with the succinct comment: “You know, there’s really got to be a special place in the afterlife for taking kickbacks to send kids to jail.” Once someone hits the nail on the head, there’s no need to continue.)

Then yesterday, Ian Urbina’s article “Despite Red Flags About Judges, a Kickback Scheme Flourished” was published in the Times. Urbina reported that in this particular juvenile courtroom:

Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt.

Two minutes. Seems like a long time considering you know in advance you are going to max the kid out. But I guess you’ve got to keep up appearances.

Lawyers told families not to bother hiring them. They would not be allowed to speak anyway.

My first thought was to blog about a concept I encountered twenty years ago in some undergrad cognitive psychology class: learned helplessness. Honest lawyers told parents not to hire them because there was nothing they could do in that court to help improve the child’s outcome. And unlike the animal psychology experiments by Seligman and Maier, no one ever could or did turn off the shock collars. Everyone really did go to prison. What’s the use of getting a lawyer?

But then for some reason, this part of the article struck me as odd:

On Thursday, the State Supreme Court ordered that the records be cleaned for hundreds of the 2,500 or so juveniles sentenced by Judge Ciavarella, and in the coming weeks, the two judges will be sentenced, under a plea agreement, to more than seven years in prison.

Other reports had very specifically said 87 months.

This was a federal case. The article stated that the defendants plead to “tax evasion and wire fraud”. A quick check on PACER confirmed that, yes, the information charged them with violations of federal law: 18 USC § 1343 (wire fraud), § 1346 (honest services), and § 371 (conspiracy to defraud the United States – that is, the “tax evasion”).

Federal crimes and a guilty plea = guessing game when it comes to the guidelines, right? Heck, Doug Berman makes a pretty good blog-living just from his frequent “everyone weigh in to guess what sentence So-and-So will get” posts.

And yet the papers were predicting the sentence exactly. Usually you’ll see some sort of namby-pamby mumbo-jumbo about “could get up to 20 years in prison”. Or whatever the maximum sentence could be. Ubiquitous background check availability on the internet still can’t guarantee that a journalist will accurately predict criminal history category.

And I’d bet even the best federal criminal defense lawyers are occasionally caught off guard by increases to the base offense level suggested by Probation in the Pre-Sentence Report. And even if you know the criminal history and the offense level, there’s still a range. Predicting an exact sentence in a federal criminal case is impossible.

With one exception. Federal Rules of Criminal Procedure 11 (c) (1) (C). Eliding, we get:

Rule 11. Pleas

(c) Plea Agreement Procedure.

(1) In General.

…If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will…

(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

Another few clicks on PACER and my suspicions were confirmed. The defendants had entered into an 11 (c) (1) (C) agreement. They aren’t going to face the vagaries of the Federal Sentencing Guidelines; assuming the judge will approve the plea bargain, they already know exactly what they are getting.

The usual course of business when representing a lawyer, a doctor, a professor, a “professional” in a criminal sentencing matter is to beef up that “boy-scout packet” and argue to the judge that your client had always been an upstanding and contributing member of society. Except for this one little hiccup. Can’t you use your discretion to ignore those no-longer-mandatory guidelines and sentence us below them?

Of course, the flip side of Booker is that the judge is also free to “tailor the sentence” above the guidelines. And who is a judge going to hammer, if not some scumbag whose actions disgrace his own profession?

Still, it’s ironic, isn’t? These men who held the fate of thousands in their hands being afraid to leave their own sentences “up to the judge”. I find myself thinking like a victim’s rights advocate.

Wouldn’t it have been more appropriate if they had to walk into court, like their victims did, shaking in their boots and not knowing what their own fate would be?

A Scandal in Bohemia: Heads We Win, Tails Unpublished

Doug Berman of Sentencing Law and Policy asks why do defense wins in sentencing appeals often go unpublished? Good question. Let’s get to the bottom of it.

It is bad enough that defendants rarely win major sentencing appeals.  It is worse, and quite disturbing, that many circuit courts seem to want to have the rare defense win go unnoticed.

Meanwhile, as evidenced by two big published rulings today by the Tenth Circuit, circuit judges usually make sure that major losses by defendants get the full published treatment. 

In US v. Friedman, No. 07-4118 (10th Cir. Feb. 10, 2009) (available here), a defendant has his below-guideline sentence reversed in a published opinion, and in US v. Yanez-Rodriguez, No. 08-2100 (10th Cir. Feb. 10, 2009) (available here), a defendant has his above-guideline sentence affirmed in a published opinion.

Well it can’t be the first and most obvious reason: that courts don’t want to make good precedent for defense lawyers to argue on behalf of their clients in the future. Since judges are neutral and detached magistrates, always making decisions based on the law, this is impossible.

So let’s play Sherlock Holmes, shall we? (“Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.”)

To be fair, not all unpublished opinions are defense wins. The others more often than not are the kind where the defendant loses, but the reasoning is so twisted and ridiculous that your average middle school student reading the opinion could point out the logical flaws. Maybe a bright fourth grader; but generally speaking it would take your average seventh grader.

Another possibility is that it’s just random chance. But anyone who spends time reading appellate decisions can tell you that the trend is way above that for random events. There’s a statistically significant sample size, and a result in play, so randomness won’t account for it.

This becomes even more apparent when you take a cursory look at the percentages of defense wins in federal sentencing cases. They are tiny compared to government wins. A random effect would show up, therefore, in an overwhelmingly huge percentage of all unpublished opinions being "wins" for the U.S. Attorney’s Office. Not so. We eliminate chance alone as a possibility.

So we reach our conclusion. Please don’t forget the “no matter how improbable” part of the inductive reasoning axiom. I fear you will instinctively reject the conclusion, but it is inescapable.

Before I spell it out, let me apologize in advance. Not for the use of profanity, although I don’t know that I’ve ever used it before on this blog. No, I apologize because I know that not all of my readers are lawyers, and I’m going to be using some highly technical legal words and phrases in my carefully thought out explanation.

So here goes: the reason that defense wins in federal sentencing guidelines cases so frequently go unpublished is that…

…the appeals courts are full of a bunch of lilly-livered chickenshits.

Wait. That actually sounds frighteningly similar to the first possibility already discarded.  Hmmmmmm.

Either way, as Berman said, “quite disturbing”.

Some Good Ideas About Federal Sentencing

Thanks to Mark Bennett for posting a .pdf to the Texas defense lawyers listserv of the recent letter by the Federal Defenders concerning sentencing reform to the U.S. Sentencing Commission. The email contained specific instructions that the .pdf was a public document and was meant to be disseminated, so here’s a link.

I haven’t finished all 70 pages of it yet, but here are some highlights for what the Commission should do:


  • Reform the relevant conduct guideline;
  • Narrow the career offender guideline to the extent possible within statutory limits and recommend to Congress that § 994(h) be repealed;
  • Reassess and adjust the guidelines that are based on mandatory minimums, including the crack guidelines;
  • Amend the guidelines to give the courts more flexibility to sensibly use alternatives to incarceration under the guidelines;
  • Prepare an updated study of mandatory minimum laws;
  • Eliminate the unwarranted disparity in mandatory minimums for crack and powder cocaine;
  • Reduce the overall severity levels and the prison population;
  • Increased focus on rehabilitation;
  • Increase flexibility and simplicity.


Sounds reasonable to me.

The Boston Celtics, Len Bias, and the War on Drugs

So the Celtics celebrated another championship the other night, their first since 1986. I wasn’t nearly as bitter this time around.

True, they didn’t beat the Twin Towers this time – Akeem Olajuwon and Ralph Sampson – my high school heroes, but the real reason for my lack of interest is that I haven’t paid attention at all to the NBA in years.

However, Pete at Drug WarRant reminds us all of what happened after that last Celtic championship. They drafted Len Bias, who overdosed two days later. Tip O’Neil, D-Boston, was Speaker of the House. I won’t rehash Pete’s excellent original analysis of the situation, but suffice it say that yes, this incident was in large part responsible for such tragedies as mandatory minimum sentences in cocaine cases, the 100-1 crack to cocaine ratio, and basically the unreasonably long sentences still meted out in federal drug cases.

Democrats wanted to show their constituents just how ‘tough on crime’ they could be, so political expediency trumped thoughtful analysis, and over two decades later the U.S. leads the world by far in incarceration.

And just think. If my 1986 Rockets had beaten Bird, Parrish and McHale? Boston would have had a different place in the draft, and probably wouldn’t have selected Len Bias. Amazing what random chance can do to an entire criminal justice system.

Is the Maximum Sentence the Same as Getting Off Easy?

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?

Retroactivity for Crack Cocaine Offenders: NBC News

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

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.

Supreme Court Turns Down Mandatory Minimum Case

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…

Obnoxious Behavior Worth Twenty Years?

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

More on Crack vs. Powder Cocaine

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)

The Crack / Powder Cocaine Sentencing Disparity and a Creative Solution...

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”.

Wrongful Imprisonment Leads to Above Guidelines Sentence???

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.

Punishing Hypothetical (Rather Than Actual) Conduct

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?

Deadly Conduct: Crime of Violence for Federal Sentencing Guidelines?

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.