DATA SHOW MORE VARIETY IN SENTENCING

Some Judges Use Too Much Discretion, Are Too Lenient, Critics Say

In the first 13 months since federal judges were handed more freedom
in sentencing, punishment disparities have developed among
courthouses nationwide, new data show.

Federal prosecutors and judges in Iowa downplay the meaning of the
statistics, but defense attorneys say the numbers reinforce what they
have always believed: Varying judicial temperaments, combined with
harsher prosecution in Iowa's northern half, can create widely
different sentences for similar crimes.

"There are some judges who are far less likely to" depart from
federal sentencing guidelines, said Alfredo Parrish, a defense
attorney who has represented alleged criminals in both of Iowa's
federal districts. "Everybody knows it."

The data, from the U.S. Sentencing Commission, indicate a new
attitude among judges since a January 2005 U.S. Supreme Court ruling
that gave them much more leeway in how they dole out punishment.

Nationally, judges have been 10 percentage points more likely since
the change to deviate from what were mandatory sentencing rules
before then. Almost always, they deviated with less-harsh sentences.

The guidelines, created in the mid-1980s because Congress wanted more
uniformity in punishments, gave judges scant wiggle room. After only
13 months with "advisory" rules, Justice Department officials have
urged Congress to take away judges' freedom.

William Mercer, U.S. attorney for the District of Montana, last week
urged a congressional subcommittee to write new rules that would
create more mandatory minimum sentences.

"There has been an undeniable erosion in the rate of compliance with
the guidelines and an appreciable and troubling increase in
sentencing disparities across the nation," Mercer said. "In short,
both consistency and accountability are eroding."

In Iowa, that's meant a sentencing gap between two federal court
districts. Previously, judges in the Northern and Southern districts
followed the suggested sentences about 74 percent of the time.

Since the change, judges in Iowa's Northern District have continued
to issue guideline-approved sentences in nearly 69 percent of cases.
But in the Southern District, which includes Des Moines, the
percentage fell to 49 percent.

Federal court authorities in Iowa argue that the numbers don't
adequately reflect all the factors that go into a sentencing
decision. But Steve Swift, head of a loose affiliation of northern
Iowa defense lawyers, said the trend could raise the question of fairness.

"The danger, from my perspective, is that we start to get back to a
world of variances in sentences, and then the question becomes, 'Is
that a fair system?' " he said.

"We have these guidelines, and we tell ourselves that we're going to
be handing out equal sentences, and maybe we're not."

Exact comparisons between Iowa's two districts are difficult because
of differences in caseloads and in the circumstances of the crimes.

For instance, the two judges of the Northern District sentenced two
defendants the first week of March. Meanwhile, three judges in the
Southern District handed down 20 sentences.

None of the cases matched exactly in terms of the defendant's
background, age or criminal history. But a spot comparison shows that
William Edward Winn and Jodie Elaine McAtee, sentenced in separate
districts on meth-making charges, drew sentences that were only
slightly different: Southern District Judge Robert Pratt sentenced
Winn to 16 1/2 years; northern Judge Linda Reade gave McAtee 13 years.

The issue gets more complicated when one factors in what lawyers say
is a key difference between the districts - the frequency with which
prosecutors ask for sentences to be reduced.

Southern District Judge Ronald Longstaff on March 3 sentenced David
S. Brady to two years and nine months for marijuana trafficking. On
the same day, northern Judge Mark Bennett pondered whether admitted
pot distributor Kim Darby Saenz deserved the 3 1/2-year sentence that
prosecutors had requested. Bennett had overshot a previous request
for leniency when he sentenced Saenz to one year and eight months,
which was overturned on appeal.

The federal sentencing report does not include detailed information
needed to compare each judge's willingness to follow the guidelines.
Federal law in most cases bans major departures unless prosecutors
ask a judge to do so. The requests for special treatment usually are
reserved for informants who help with other cases.

In 2004, under the old sentencing rules, Northern District
prosecutors filed for leniency in 23 percent of their cases, compared
with 20 percent in the Southern District.

Between Jan. 12, 2005, and Feb. 1, 2005, northern prosecutors sought
lower sentences in only 14 percent of their cases, compared with 21
percent in the Southern District.

Bennett, who has criticized the stinginess of northern prosecutors on
many occasions, has not yet ruled on the Saenz case and declined to
be interviewed for this article.

Rich Murphy, a prosecutor for Northern District U.S. Attorney Charles
Larson Sr., said the sentencing statistics are "troubling" at first
glance, but he disputes any implication that his district treats
anyone unfairly.

"My sense is that we're not doing anything dramatically different"
this year, Murphy said. "I think it's something that ought to be
studied, but I don't think you can necessarily immediately draw the
conclusion that there is an increased likelihood of incarceration
between one district and the other."

Murphy and Southern District U.S. Attorney Matt Whitaker questioned
the value of the statistics, which are based on sometimes-incomplete
case information reported to the sentencing commission. Prosecutors
estimated that the numbers reflect only 60 percent to 85 percent of
the work that took place.

"There are so many moving variables here," Whitaker said. "I don't
think you can draw any analysis of what this says."

Reade, known among defense attorneys in the Northern District for her
stiff sentences, concedes that she is "not much of a departer" from
the sentencing guidelines.

Southern District judges voiced a willingness to be more lenient than
the guidelines, but "even when I vary from the guidelines, I usually
don't vary very far," Longstaff said.

"I think I'm still letting the guidelines be a very important factor
in the sentence. I'm just not letting them be the only factor."

Frank Bowman, a law professor at the University of Missouri-Columbia
who has studied the statistics, said the Iowa numbers show that
"plainly, something different is happening here."

A broader point, however, is the fact that so many federal judges
have proven so willing to use their new-found sentencing discretion,
Bowman said.

"I don't think you can really deny the obvious, which is you have an
advisory system where judges are equally free to go up and down . . .
and they're going down at a rate of 22 to 1," Bowman said. "No matter
how you slice it, it seems to me that you've got a judgment being
expressed here that the sentences mandated by the guidelines are far
too high more often than they're too low."