Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.
The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.
Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”
But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.
Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.
For as long as we’ve been practicing law, everyone has been complaining bitterly about the 100-1 disparity between crack and powder cocaine sentences under the Guidelines, but nobody’s done anything about it. And over the last year or two, there’s been a growing movement among federal judges to push back against the dumbfoundingly disproportionate sentences for those who merely look at child porn — most recently with the Second Circuit’s Dorvee ruling a couple of weeks ago, basically telling the District Courts that the Guidelines here are crazy and ought to be ignored. (See also the NY Times’ front-page piece on Judge Weinstein this weekend, discussing his “crusade” against the “unnecessary cruelty” of the law here.)
And for as long as we’ve been in the game, the bulk of federal criminal practice has been devoted to dealing with the Guidelines. Even in this post-Booker world, the Guidelines have a huge role in federal practice. An enormous chunk of advocacy is involved in challenging the government’s Guidelines calculation, and vying for a variance or at least a departure.
We’re very opinionated here. But we’re going to try to focus on reporting in this piece. After all, these are very distinguished panelists, who frankly know far more about the sentencing sausage factory than we do. So what did the panelists have to say?
What judges think
Judge Gleeson brought some historical perspective. In 1986, when the Guidelines were first being drafted, the nation was in a panic about the crack epidemic. Amid all the horror stories the public was hearing, Congress passed a law with mandatory minimums and elevated maximum sentences for drug kingpins. 10-year mandatory minimums for trafficking bosses, and 5-40 years for middle management. Except that’s not the way it panned out.
The Guidelines were being written to reflect the national average sentences in the preceding years. But this law, with its mandatory minimums, screwed that whole idea. The Guidelines wound up having to be redrafted, to conform to this new legislation — can’t have a Guideline sentence that’s several times lower than the minimum set by statute.
And the “kingpin” law wound up applying to everyone, including low-level street schmucks. The sentencing wound up not taking into account one’s role in the organization, but merely the amount of drugs involved. So someone on the bottom rung of a drug sale could easily wind up getting the kingpin sentence. Especially if crack was being sold, where 10 grams would be punished as severely as a kilo of powder. Only 6% of defendants are actually bosses or managers, but the 94% who got picked up on the street — the “low-hanging fruit” — went to prison in greater numbers, and for far greater terms of incarceration.
Judge Gleeson pointed out that the whole purpose of the Sentencing Commission is to protect the law from the shifting political winds of Congress. But the winds blew anyway, and Congress rejected any attempts to make the Guidelines more reasonable, as the injustices became apparent. On the contrary, the prevailing winds only blow in one direction, resulting in ever-increasing sentences as elected officials pander to the latest crime scare. Congress wound up micromanaging the Commission, directing increases for the most obscure offenses, and even making its own amendments without involving the Commission at all.
At the end of the day, drug sentences are now 3 times what there were before the Guidelines were enacted, even though the offenses themselves are no more severe than before. After Congress shot down the Commission’s first proposal to equalize cocaine sentencing, the Commission has refused to take the lead, instead waiting for Congress to lead the way. The DOJ says the crack/powder sentences should be identical. The Senate proposed that the crack disparity be reduced from 100-to-1 down to 18-to-1. The House hasn’t acted at all.
What Congress thinks
At this point, Rep. Conyers spoke. Like most career politicians in a setting like this, he spoke an awful lot without saying much. (We got a kick out of watching the visible signs of frustration among those in the audience, who felt the various digressions on congressional history, the health-care bill, war policy and the like to be a complete waste of time. Some of the gestures and gesticulations were chuckle-inducing. Conyers seems not to have noticed that he kept losing his audience.)
What he did say that was on point was fairly interesting, however. He said the House has held back on resolving the crack/powder disparity, not because they can’t see the problem for themselves, but because the Senate’s 18-1 bill sets a limit on whatever they can hope to get if the bill ever goes to conference. Fair enough. But he didn’t offer any explanations of why 18-1 seemed rational to the Senate in the first place.
He said that it’s the conservatives and the blue dog Democrats who are opposed to sentencing fairness. So a voice vote would never work. And a suspension would require a two-thirds majority, which can’t be gotten without the votes of those very conservatives and blue dogs. [As part of the conservative Republican end of the political spectrum, however, we’d have to say Conyers’ concern is misplaced. The Republican platform may be pro-death-penalty for certain violent crimes (though we ourselves are against capital punishment, as mentioned previously), but it also wants to get rid of mandatory minimums for nonviolent offenders, and to focus the drug laws back on the kingpins they were intended for.]
Whenever there is some horrific crime in the news, some congressman is going to get up on his hind legs and make a speech, demanding tougher sentencing, more micromanaging of the Guidelines, etc. That goes for politicos from either party. It’s typical pandering, irrational and emotional — exactly what the Sentencing Commission was supposed to insure against.
What the Commission thinks
Chief Judge Sessions countered that the Sentencing Commission is not beholden to Congress. Yes, he admitted several times that the Commission works far more closely with Congress than with the other two branches of government. Yes, it works “incredibly closely” with Congress, as a matter of fact. But it would be a mistake to treat it as Congress’ lap dog. They’re proud of the fact that, since 1991, pretty much every new criminal law has sought to impose a mandatory minimum, and due to the Commission’s efforts most of those laws have wound up without one.
Unfortunately, the Sentencing Commission is not a big-government utopian agency of wise experts, acting on all kinds of studies from the social sciences. It doesn’t direct policy from an ivory tower built on the bedrock of hard data. It really is beholden to Congress in most important respects. The Commission makes an effort to respond to the concerns of all three branches of government, Sessions said, and they are in fact passing some amendments this year despite Congress. But he had to admit that, for the most part, the Commission responds mostly to the concerns of the legislature.
Sessions had a real problem with the Second Circuit’s move to disregard the child porn guidelines in particular, and the judiciary’s general move towards individual justice rather than compliance with the bright-line Guidelines scheme. Cases that tell judges to disregard congressional policy, he said, are not the best way to get Congress on board with the reforms that have to be made.
[We’d have to disagree here. How else is Congress going to realize what the nation wants? Congress short-sightedly, and incorrectly, assumes that everyone wants to ratchet up sentences. That being perceived as “tough on crime” is what gets votes. But what people want to be tough on is violent crime, against real victims, and maybe some extreme cases of massive economic crime against real people. Nobody wants symbolic measures that destroy lives in disproportionate retaliation for nonviolent offenses. The judiciary’s general rejection of such measures is precisely what the judiciary is there for in the first place, at least since Marbury v. Madison — to check and balance the excesses of the legislature and the executive. It’s not the judiciary’s job to suck up to Congress, and it’s telling that Sessions seems to think so.]
Sessions reported on a recent massive survey of federal judges, which found that 75% believe that the system as it exists is “the best available” (whatever that means), that the Guidelines are a part of the culture of criminal procedure now (not exactly a shocker), and Booker is being followed. Excepting crack sentences, only 30% thought that drug sentences were too high (everyone seems to think crack is sentenced too harshly). Everyone agrees that mere possession of child porn, rather than creating or distributing it, is punished too severely.
Judges say they need more discretion, particularly at the lower levels of the Guidelines. They want alternatives to incarceration, such as treatment programs, just like the ones the states have been using with great success for 20 years or so.
The Commission also figured out that the criminal history points don’t really reflect the realities of recidivism. They add 2 points for an offense committed within 2 years of release from prison, but there’s no correlation between that and the incorrigibility that’s supposed to be penalized here. So they’re getting rid of that particular calculation later this year. That should result in an average reduction of one year off a whole lot of people’s sentences.
Another point of contention has been whether courts can consider individual characteristics of the offender, in granting a more lenient sentence. Congress put the ixnay on that back in 1987, instructing the Commission to discourage 11 particular factors. Earlier this year, the Commission reinstated 5 of these factors. Courts are now allowed to take into account, once again, such common-sense factors as the age of the offender, his physical condition, his mental health, his emotional condition, and any military service. If any of these are relevant, the court is now permitted to take a downward departure based on such considerations. Judges had wanted to depart, but felt they couldn’t, because the Guidelines said they couldn’t. Now the language has been changed from saying these are categorically “not relevant,” to saying they “may be relevant.”
Also, Zones B and C have been expanded by one level, to give more discretion to judges.
And the Commission is starting to consider the beginnings of drug treatment, and treatment for those with mental health problems. Addictions and disorders that contributed to the offense may perhaps at some time in the future be grounds for a non-prison sentence to deal with the underlying problem instead. [Again, this has been done in the states for a generation already. When we first started with the NYC Special Narcotics Prosecutor’s office in 1997, their DTAP program was well under way, which involved 18 months of inpatient treatment, and 18 months of outpatient treatment, involving getting one’s GED, getting a job, moving out of the crime zone if necessary, getting a bank account, amassing a couple grand in savings, and otherwise figuring out how to get ahead without drugs. Had a 70% success rate, if we recall correctly. We remember being a very young lawyer with grownups sobbing with gratitude at our desk, thanking us for giving them the opportunity. Now it’s systematic, institutionalized in the state’s drug courts. All kinds of states have similar success stories. Why the feds are only now beginning to explore the possibility of maybe someday trying something like that themselves is beyond us.]
What the Department of Justice thinks
The DOJ was represented by Jonathan Wroblewski, a pretty decent guy. But we have to say we had problems with his approach, as well.
He said the saddest thing is the political dysfunction preventing any progress on the crack/powder issue. The political dialog has changed dramatically, so that everyone feels like they have to argue from extremes, and point fingers at the other party. [We’d say this has been politics as usual since the founding of our republic, but we’re only a historian in our spare time, so what do we know.] But it would take near-unanimity of representatives from both parties to get the change that is needed. And that’s not going to happen so long as people keep demonizing the other side.
Wroblewski said that the constant ratcheting-up of federal sentencing is relieved in practice by the “safety valve” — referring to USSG § 5C1.2, which allows a reduction below mandatory minimums if the defendant has minimal criminal history, and comes clean with everything he knows about the offense and his fellow conspirators. [Oddly enough, in practice this exposes defendants to a whole lot of risk, and gives the feds all kinds of ammo to go after them and their compatriots; and further exposes defendants to prosecution for obstruction if they don’t disclose everything exactly right. It’s not something to be attempted lightly. We think of it less as a “safety valve” than as a “booby trap” or as “cooperation without confidentiality.”]
He participated in a working group on sentencing formed by AG Holder, speaking with all kinds of judges, prosecutors, defense lawyers, victims groups, visiting prisons, etc. During his time with that group, he’d formulated seven observations:
1) The federal sentencing system is fragmenting into two separate systems. One set of judges are following the Guidelines, and another set has lost confidence in the Guidelines and no longer feel any need to follow them.
2) The Guidelines and mandatory minimums still have an important role in our system.
3) Nationwide, the level of sentencing overall hasn’t really changed. It has here in major metropolitan areas [which we’d say are more likely to gain perspective sooner, because the sheer volume of cases accelerates their institutional experience dramatically], but nationwide on average it hasn’t. What he’s seen instead is an increase in sentencing disparities, which is one of the things the Guidelines were supposed to prevent.
4) The federal prison population is growing exponentially. Meanwhile, crime rates are down, in part because more criminals are behind bars. [We have to agree with this conclusion, but wish we didn’t have to lock up so many who aren’t repeat or violent offenders, just to keep the ones who are off the streets.]
5) There is a non-partisan imperative to improve the re-entry of prisoners into society.
6) Across the board, no matter who you speak to, there is little appetite for an overhaul of the system. It would involve too much uncertainty, strain and change. But at the same time, it’s obvious that the system needs to be overhauled.
7) There’s been a lot of litigation, post-Booker, but a lot of it has been needless. [We’re not sure of what he meant by that, frankly.]
In response, the DOJ is now working toward enacting a new crack/powder law, creating initiatives to improve prisoner re-entry, changing the DOJ’s charging policy (so that AUSAs aren’t compelled to charge the highest offense with the most severe sentence, as had been required under Ashcroft), and improving data collection so as to catch injustice and hopefully nip it in the bud.
A final word
There were several intriguing comments from the other panelists, and also some good questions from the audience. But we’ll leave you with this one bit about prosecutorial discretion.
As you know, state prosecutors (at least those in the better offices) have the discretion to decide for themselves what crimes to charge, what pleas to offer, and what sentences to offer with those pleas. They are expected to use their judgment to act in the interests of justice. They of course are guided by the penal laws, by their supervisors, by office policies and by community standards, but in the end the decision is up to the individual prosecutor.
This is important. Prosecutors are given an enormous amount of power. With great power must come the discretion to use it wisely and justly. Otherwise, it’s just a big freaking hammer to be used without regard to the size of the nail being hit. And discretion is given to be used. Failing, or refusing, to exercise discretion is an abuse of discretion. It’s flatly unethical.
And yet that is precisely the policy of the DOJ when it comes to sentencing. Individual prosecutors, in the words of Mr. Wroblewski, cannot be allowed to decide for themselves what the appropriate outcome ought to be.
DOJ prosecutors have to seek the maximum charge, and pursue the sentence prescribed by the Guidelines for that charge. Once the essential facts are established, there is no wiggle room. Defense counsel can argue the §3553(a) factors, but not the government. Defense counsel can seek a variance, but not the government. (Though later this year there may be some more leeway for the government to seek a variance in certain cases, watch this space for updates.)
The perceived need for consistent application of the law trumps individual justice. The perceived need to carry out the stated policy of the legislature — no matter how irrational it may be, or how inappropriate to this case — trumps individual justice. Bright-line rules take away discretion in favor of uniformity and ease of application, but they also erase the iffy areas that aren’t so clear-cut, or weren’t necessarily intended, resulting in real injustice on the individual level. That’s the entire reason why discretion is necessary, and given, in the first place.
But the DOJ can’t be having with that. After Booker, the idea was floated that the DOJ ought to write up its own guidelines. Just as the Guidelines are now advice, and the defense bar would be giving its advice to the court, the DOJ wanted to have its own policy to advise the court. But having an office policy would lead to each district having its own office policies. The Southern District of New York and the Middle District of Georgia could conceivably have different office policies. That would be chaos. Think how much more disparity there would be if individual prosecutors were able to exercise their own judgment about the appropriate outcome for a case/
To that, we have to repeat that failure to exercise discretion — whether by choice or because the DOJ forbade it — is an abuse of that discretion. It’s unethical. It defeats the whole purpose of granting that discretion. Which defeats the whole purpose of granting such awesome powers to the prosecution.
So if the DOJ (or any other prosecutor’s office, for that matter) is going to preclude its prosecutors from exercising their discretion, then the awesome powers which that discretion is meant to balance must also be taken away. Failing that, there is nothing left but enormous governmental power over the individual without the necessary checks for individual justice.
And that’s just not right.
[…] the bizarre discrepancy in sentencing for crack vs. powder cocaine. (See our latest piece on this here.) In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack […]
[…] the bizarre discrepancy in sentencing for crack vs. powder cocaine. (See our latest piece on this here.) In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack […]