MANDATORY RULES FOR JAIL TERMS UNDER FIRE

No one claims Marnail Washington was innocent. Not his lawyer, not the
judge and not Washington himself, who entered a guilty plea to federal gun
and drug charges late last year.

But the judge who sentenced Washington, a 22-year-old, first-time offender,
called his 40-year prison term the "worst and most unconscionable" sentence
he had given in more than two decades on the bench.

The average federal sentence for drugs is 5 years and 9 months, and for a
firearm offense the average is 5 years, according to the U.S. Sentencing
Commission's 2001 annual report.

But U.S. District Judge Myron Thompson's hands were tied. The rules that
govern federal sentences can leave judges with little to no wiggle room
when it comes to sentencing, despite the facts of the case.

If Washington had come through the court system a year later, the
environment might have been different. There have been no sentencings in
the Middle District of Alabama since a June U.S. Supreme Court ruling that
turned the federal sentencing system on its head.

In Blakely v. Washington, the court challenged the constitutionality of
using guidelines in sentencing, saying that the factors that go into a
sentence should be proven beyond a reasonable doubt to a jury, not decided
by a judge.

And in the post-Blakely world of sentencing anything can happen as federal
judges nationwide are left trying to cope with a system in which the
bedrock of sentencing has been cracked.

On June 29, less than a month after the Blakely decision, Paul Cassell, a
federal judge in Utah, declared the guidelines unconstitutional, making him
the first federal judge to do so.

Any many judges are straying from the guidelines, now that they've been
called into question.

In response, the U.S. Judiciary Committee held hearings on the Blakely
decision, and U.S. Sen. Jeff Sessions, R-Mobile, helped chair the hearings.

"I think this is the most dramatic, disruptive decision involving criminal
law in the history of this country," said Sessions, a former prosecutor who
called himself a "very strong supporter" of the guidelines.

Most of the guidelines used today were developed in the 1980s, to ensure
similar sentences for similar crimes and to eliminate racial discrepancies
in sentencing.

Under the guidelines, each crime has a base level sentence. From there,
other factors are added in, such as the use of a firearm in the crime,
criminal history and the defendants' willingness to accept responsibility
for the crime.

These factors determine a range of sentences for the defendant that the
judge must adhere to, although under certain circumstances, the law allows
for judge to depart from the range.

Barry Teague, Washington's attorney, blamed the sentencing system for his
client's long sentence, and said there was nothing he could have done.

"I think the sentencing guidelines are a cookie-cutter that doesn't work
well when you're dealing with human beings. More often than not, it seems
to be an unfair, unjust result," said Teague, who is appealing Washington's
conviction, but not on the basis of the sentencing.

But Sessions pointed out that the guidelines were fairer than none at all,
because everyone, rich, poor, black and white, is treated the same under them.

"I believe in the sentencing guidelines. They're about fairness,
objectivity and eliminating racial bias," said Sessions. Although there
might be areas of the guidelines that need tweaking, he said, "we shouldn't
ditch the system."

Rodney Brown of Montgomery also feels the federal guidelines and mandatory
minimums turn a blind eye to those convicted of crimes.

Brown has been friends with John Allen Dees since their days at The
Montgomery Academy. Later, they went to the University of Alabama, where
they joined the same fraternity.

But after graduation, Dees, who struggled with migraines, turned to drugs,
Brown said. On April 23, 2002, Dees was caught with cocaine and a gun,
which he had a license to carry.

Brown said that Dees carried a gun, in part, because of death threats to
his family. He is the nephew of Morris Dees, founder of the Southern
Poverty Law Center, which tracks hate groups and works to expose and end
white supremacist groups.

Dees was prosecuted federally and pleaded guilty. Despite the fact that he
had no criminal record and despite an outpouring of about 40 people that
showed up at his sentencing, Dees got the mandatory sentence of five years,
according to court records and Brown.

"There's nothing you can do. It's a mandatory sentence. There's no amount
of money you can throw at it to make it go away," Brown said.

But unlike Washington's sentence, Dees' sentence is in line with the
average penalty for drug offenders.

Washington's sentence was unusual in that it was the result of a cocktail
of legislation, a Supreme Court decision and the guidelines.

He was first arrested on Feb. 7, 2003, in front of Sidney Lanier High
School, where he was found with 33 grams of crack cocaine and a 9 mm
handgun in the console of his truck, according to court records.

On Feb. 13, 2003, police executed a search warrant at 111 Canna Drive,
where Washington and four others were located.

During the search, one of the men in the house fired a gun, and an
officer's ballistic shield shattered, injuring his face, according to court
records. Washington was found with more crack cocaine in his pocket, and
there were several firearms in the house.

Washington was charged with five counts for the incidents: one count of
possession to distribute crack cocaine within 1,000 feet of a school, one
count of possession of a firearm within 1,000 feet of a school, one count
of possession of more than 50 grams of crack cocaine with the intent to
distribute and two counts of possession of a firearm in relation to a
drug-trafficking crime.

Washington had no criminal record, and would have been eligible for
Youthful Offender status if he had been tried in state court because of his
age and his status as a first-time offender.

But in federal court, he was sentenced as if he were already a convicted
felon. A 1993 Supreme Court case says that when a defendant faces multiple
charges from offenses on different dates, the offenses on the second dates
count as a second offense.

Because the law allows little flexibility for judges to adjust or lower
sentences and because some of Washington's crimes carried mandatory minimum
sentences, Thompson gave Washington 40 years in prison, despite his
feelings that it was unjust.

"From the point of view of a 22-year-old, 40 years is essentially a life
sentence," Thompson wrote in an opinion drafted to clarify why he gave the
sentence.

"Society generally reserves such harsh sentences for its most dangerous or
incorrigible offenders, such as murderers or career offenders," Thompson wrote.

But in federal court, drugs and guns will, on average, get a defendant a
higher sentence than sexual abuse, assault or manslaughter.

The average drug and firearm sentences are 69 months and 66 months,
respectively, compared to average sentences of 59 months for sexual abuse,
31 months for assault and 33 months for manslaughter.

Within the guidelines, certain factors trigger mandatory minimum sentences,
meaning the judge cannot hand out a sentence lower than a designated time
period.

"The particulars of an individual or an offense cannot be taken into
account in determining a sentence," said Mary Price, an attorney for
Families against Mandatory Minimums, a nonprofit organization that seeks an
end to mandatory minimum sentences in state and federal courts.

Price said the sentencing rules came from politicians' desire to take a
hard line on crime.

"I think tough on crime still sells on Capitol Hill. It still has some
appeal, although judges and lawyers and groups like ours are building
resistance against them," she said.

As groups like Price's try to counter efforts to ratchet up federal
sentences, Washington will continue to carry out the next four decades of
his life in prison, at a cost of $900,000 to the public, according to U.S.
Bureau of Prisons' estimates.

But the cost to his family and his infant son, who will grow up without a
father, will be "incalculable," Thompson wrote.