Judges hold back on newly won sentencing discretion

Sunday, March 05, 2006

Raymond Donald Pierce stood in a federal courtroom in Mobile last August
and nervously awaited punishment for his role in a July 2004 break-in of a
prominent Washington County hunting club.

Had Pierce faced U.S. District Judge William Steele as recently as seven
months earlier, he would have headed to prison. Mandatory sentencing
guidelines would have required at least a year of incarceration for the
crime to which he had pleaded guilty, possession of stolen firearms.
But Pierce's hearing came following a U.S. Supreme Court decision that
made the sentencing guidelines advisory. With his newly acquired
discretion, Steele sentenced Pierce to a single day locked up at the
federal courthouse under the supervision of the U.S. Marshals Service.
Another local defendant, Jessie Scott, found out last year that the
sentencing flexibility can work the other way.

Having pleaded guilty to threatening the life of Senior U.S. District
Judge Charles Butler Jr., Scott faced up to seven years and three months
in prison, according to the sentencing guidelines. That was the term
recommended by prosecutors.

But Senior U.S. District Judge Lacey Collier, a Pensacola jurist brought
in to preside over the case when the Mobile-based federal judges recused
themselves, sentenced Scott to 10 years.

The two cases demonstrate the considerable authority now held by federal
judges to craft punishments without constraint from the complex guidelines
that had governed sentencing practices since the late 1980s.

Still, in the year since the Supreme Court's U.S. vs. Booker decision,
judges in southwest Alabama and nationally have stuck to the old practices
more than 90 percent of the time, according to statistics compiled by the
U.S. Sentencing Commission. Sentences like those given to Pierce and Scott
have been the exception rather than the rule.

"I think a lot of people were worried after Booker, it would be chaos,"
said Deborah Young, an expert on federal sentencing who teaches at Samford
University's Cumberland School of Law in Birmingham.

Young, co-author of "Federal Sentencing Law and Practice" said she has
noticed that some judges are using their discretion much more than others.
Based on some cases she has reviewed from New England, she said she has
detected a possible partisan difference, with Republican-appointed judges
sticking to the guidelines more often than judges appointed by Democrats.
But overall, she said, judges have taken a cautious approach to their new
discretion.

The guideline system determined sentencing ranges for a defendant by
weighing his offense and his criminal background. The more severe the
infraction and the longer the rap sheet, the more time he could expect.
Judges could deviate from those ranges only for a few specific reasons,
most commonly when a defendant provided "substantial assistance" to an
ongoing investigation.

Despite judges' new discretion, the median federal sentence -- 33 months
-- was identical in the year before and after the Jan. 12, 2005, Booker
decision, according to U.S. Sentencing Commission information. That meant
that in both years, half of all sentences were longer than 33 months, and
half were shorter.

The fact has puzzled national experts who closely follow sentencing
practices.

"I don't know that we have all the data yet," said Marc Mauer, executive
director of the Washington-based Sentencing Project, which advocates
reducing reliance on incarceration. "It may be that there are cases that
are below the guidelines but only modestly."

In the Southern District of Alabama, which includes Mobile, Baldwin and 11
other counties, statistics show that judges followed the guidelines even
more closely than other jurisdictions since last year's high court ruling.
Apart from departures allowed under the guidelines, federal judges in
Mobile deviated from prescribed ranges only 8.5 percent of the time.

Defense lawyers and some judges long have complained that the guideline
system concentrated too much power in the hands of prosecutors.
Under the former structure, a defendant's best hope for a lighter sentence
was to cooperate with investigators and win a "substantial assistance"
recommendation from the U.S. attorney's office.

Mobile lawyer Dom Soto said the system favored the worst offenders, since
they were the defendants most plugged into criminal activity.

In addition, he said, the guidelines and mandatory-minimum sentences set
by Congress resulted in overly harsh prison terms in many drug cases. He
said he once represented a man who received a 10-year sentence for his
role in a drug conspiracy, which amounted to renting a car for a group of
dealers.

"The real, real problem with the guidelines is for the little guy caught
in all this," he said.

In the Washington County hunting club case, Pierce was something of a
little guy. The 29-year-old Lucedale, Miss., man had led a crime-free life
and had no useful information for law enforcement.

He said he knew nothing about the burglary of the Frank Boykin Hunting
Club near U.S. 43 in the McIntosh area but that one of the other
defendants, James Edward Williams, had asked him if he could use a closet
in his home. Pierce said he had met Williams through work and lived for a
time in a recreational vehicle on his Mobile County property.

Pierce said Williams showed up at his Lucedale home with 10 firearms.
Later, another co-defendant, Frankie Lee Ellis, took away eight of the
guns.

When police started asking questions, Pierce said, he showed them where
they could find the remaining guns and cooperated with the investigation.
In a recent interview, Pierce said his life has undergone a significant
transformation since his Mobile court appearance before Steele and his
subsequent one-day sentence.

"It was a blessing for us, because I had a little girl on the way who was
born two days after the sentencing hearing," said Pierce, who since has
found work as a shipyard electrician. "Everything's turned around."
Congress created the Sentencing Commission in 1984, and the guidelines
took effect three years later. The idea was to improve predictability,
consistency and fairness in federal sentencing.

The system proved controversial from the start, with some judges chafing
at the new restrictions and some lawyers complaining that they ignored the
individuality of each defendant.

"Everybody acts like you can take people and pigeonhole them into these
categories," said Soto, who has practiced law in Mobile since the 1980s.
Besides, Soto added, the goals of the guidelines were illusory, and
subjective decisions got made throughout the process.

For instance, did a defendant deserve a reduction for sufficiently
accepting responsibility? Did a defendant play a minor enough role in a
conspiracy to warrant a reduction? Or, did he play a central enough role
to justify an enhancement?

Soto said of the guidelines, "That's really just hokum. You're not going
to ever remove the subjective part of this."

Mauer, of The Sentencing Project, said guidelines did not eliminate
discretion, but rather placed it with prosecutors. A prosecutor decides
what charge to bring. For example, a prosecutor may allow a defendant to
plead guilty to a lesser offense.

"By lodging so much power in the hands of prosecutors, it's very hard to
measure what's going on. Those decisions get made behind closed doors.
They're not reviewable. They may be arbitrary," Mauer said.

In Booker, a divided Supreme Court declared the mandatory guidelines
unconstitutional. But in a separate opinion, the court also ruled that
judges must continue to consider the guidelines before they sentence
defendants.

As a result, the federal court in Mobile has continued to operate largely
as before. The U.S. Probation Office still conducts a pre-sentence
investigation into a defendant's criminal background, and still calculates
a range of possible punishment based on the background and the offense.
Alabama's federal judges said they are taking their marching orders from
the Atlanta-based 11th U.S. Circuit Court of Appeals, which reviews cases
from the lower federal courts in Alabama.

"The guidelines, themselves, are still pretty influential," said Ginny
Granade, the chief judge of the federal court in Mobile. "You really,
under current case law, need to have a pretty good reason not to follow
the guidelines."

For defense lawyers, that has proved frustrating.
"The guidelines are very severe and harsh. They enjoy sending poor people
to jail," said Robert "Cowboy Bob" Clark, a well-known Mobile lawyer. "Why
do we have judges?"

George Tragos, a Tampa Bay-area lawyer who served as the criminal division
chief in the U.S. attorney's office for the Middle District of Florida
during the 1980s, said he believes that many judges continue to believe
the "propaganda" that sentences can be standardized.
"There is no such thing as identical situations," he said. "I think if you
make somebody a judge, he should have to do his job."

U.S. Attorney Deborah Rhodes, though, said sentencing guidelines have
served the country well. She urged judges to continue to follow them.
"Several studies show that they have also helped to reduce the crime rate,
which is at its lowest point in 30 years," she said in a statement.

Some legal analysts have said that judges are hewing close to the
recommended sentences because of uncertainty. Appellate courts have yet to
define what constitutes a "reasonable" departure from the advisory
guidelines.

In the absence of clear direction, Clark said, judges find comfort in the
guidelines. Following them reduces the chances that their decisions will
be overturned, he said.

But in a sentiment echoed by many, Clark said he believes judges will feel
more free to ignore the guidelines as time wears on.
"The longer we get away from (the Booker decision), the guidelines are
going to be dead," he said.

Even judges, themselves, said they think that might happen in time.
"I think the further we go, the guidelines will seem to be advisory," said
Steele, the federal judge who presided over the Washington County hunting
club case.

But Steele added that the guidelines remain a useful tool for judges. "I
don't think we'll ever get away from the guidelines. And I do think they
are important, because they do have this structure."

Then there is the issue of Congress. The Booker decision produced talk of
a congressional response, such as adding more mandatory-minimum sentences
to a host of federal crimes.

"I think we would see a lot more use of discretion if judges didn't feel
Congress was eyeing them very closely to see how they react to Booker,"
Granade said. "I think it's kind of a delicate interplay between the
judiciary and the legislative branch."

Legal experts said mandatory-minimums, in fact, continue to restrict
judges. Oftentimes, drug defendants are subject to mandatory sentences of
five or 10 years that exceed the time they would get under guideline
calculations.

Mauer, of The Sentencing Project, said some judges since the Booker
decision have challenged federal law that treats a gram of crack cocaine
the same as 100 grams of powder cocaine even though they are essentially
the same drug.

Judges' willingness to set aside the guidelines in at least some cases has
prompted some lawyers to shift strategy. Under the guideline system,
lawyers rarely put on character witnesses during sentencing hearings
because judges largely could not consider such testimony.
Dennis Knizley said he put on several such witnesses for a pair of child
pornography defendants in the past year. "In the past, I would have never
done this," he said.

Federal Defender Carlos Williams predicted that as lawyers become more
adept at setting their clients apart from other defendants, judges will
use sentencing discretion more often.

"The defense has to be become better at explaining why," said Williams,
who represents defendants who cannot afford lawyers.
Pierce said he does not know how his life would have turned out had Judge
Steele not been able to act outside the guidelines.

"It gave me a second chance to do better, and do better for my kids," he
said. "The judge was given an opportunity to look and see I'm not a bad
guy. I just made a dumb decision."