OPENING ARGUMENT: IRRATIONAL SENTENCING, TOP TO BOTTOM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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