Sentencing Shift

IN CRIMINAL TRIALS, VENUE IS CRUCIAL BUT OFTEN ARBITRARY

Taking Over From the States, Tough Federal Courts See Surge of Small-Time Cases

A Bullet in a Box Gets 15 Years

James McFarland Jr. picked a bad time and place for his crime spree. In
November and December 1998, Mr. McFarland robbed four Fort Worth, Texas,
convenience stores, emptying cash registers of sums ranging from $50 to
$1,500. Although brandishing a handgun, he never fired a shot and no one
was injured.

Five weeks later, Fort Worth police, with the help of a witness who got a
partial license-plate number of his car, nabbed Mr. McFarland at his apartment.

The case was funneled to the local prosecutor. Had it stayed there Mr.
McFarland could have been sentenced to as few as 13 years in prison. But
his crimes occurred just as the local U.S. attorney was taking a number of
run-of-the-mill robberies into the federal system under a 1946 federal law
known as the Hobbs Act, originally designed to keep racketeers from
obstructing interstate commerce. Mr. McFarland's sentence: 97 years.

The former college basketball player appealed, but the appeals court came
back with a split 8-8 decision, and his sentence stood. In opposing the
federal sentence, however, Appeals Court Judge Patrick E. Higginbotham
questioned whether Congress "intended to reach the proverbial 'robbery of
the lemonade stand' " or "claim federal hegemony over local activities,
including a street mugging."

Judge Higginbotham's question strikes at one of the core inequities in the
U.S. criminal justice system: the often-arbitrary decisions about which
suspects should be prosecuted in state court and which in federal court.

For much of America's history, the distinction was clear. Almost all crimes
were handled by the states. Only a tiny handful involving a clear offense
against the entire nation, such as treason or bribery of federal officials,
were brought into federal court.

But in recent decades Congress has passed a raft of statutes that mandate
long terms in federal prison for crimes ranging from drug dealing to
carjacking. The Violent Crime and Law Enforcement Act of 1994, for example,
expanded the federal death penalty to cover about 60 offenses, including
major drug trafficking and drive-by shootings resulting in death. Typically
states already have their own laws against these offenses that set
sentencing parameters for state judges to follow.

The decision about who should prosecute an offender is crucial, because
federal sentences are usually much tougher. The average sentence for
federal defendants convicted of drug charges in 2002 was three years and
eight months longer than the average for state drug charges, according to
the Bureau of Justice Statistics. In general there are two reasons for a
suspect to end up in federal court: Either federal agencies were involved
in his arrest, or local authorities refer his case to federal prosecutors
in the hope of getting tougher penalties.

The gap between federal and state sentences could expand if the Supreme
Court strikes down guidelines that currently govern most federal sentences.
The court is now hearing a case in which lawyers for criminal defendants
are seeking to have the guidelines declared unconstitutional. If that
happens, the sentencing option supported by the Justice Department would
let judges hand down even more severe sentences than the guidelines
currently allow.

Between 1970 and 1998 the number of federal criminal statutes nearly
doubled to 3,000, according to a 1998 American Bar Association study, the
most recent comprehensive data available. Legal professionals say the
number is much higher now -- probably around 4,000 -- although it's hard to
tell how high because the statutes aren't listed in one place. The number
of cases brought by federal prosecutors in 2001 was 82,614, up from 44,144
in 1982, according to the Bureau of Justice Statistics.

Robert Litt, a former deputy assistant attorney general for the Justice
Department's criminal division, attributes the surge in new laws to "a
tendency on the part of Congress to deal with any sort of serious problem
by making a [federal] crime out of it." Members of Congress often point to
the new laws as evidence they are producing concrete steps to fight crime.

Many of the laws draw on the federal government's constitutional authority
to regulate interstate commerce. Proving a link to interstate commerce is
rarely a problem. Most gun crimes involve a weapon that was made in a
different state and most drug deals involve contraband that came from out
of state or from abroad. In Mr. McFarland's case, the federal prosecutors'
theory was that the money he stole could have been used by the stores in
Fort Worth to buy out-of-state goods.

Many prosecutors credit the broadened scope of the federal justice system
with reducing crime and drug trafficking in some long-troubled regions.
Joint federal-state task forces using federal money and agents have broken
up drug-dealing havens and cleared the streets of hardened repeat
criminals, they say. Offenders arrested in such efforts often end up in
federal court -- in part because prosecutors have broader laws and more
severe sentences at their disposal there.

Local and federal authorities sometimes jostle over prosecution of
high-profile cases. But more often, according to Justice Department
spokesman Mark Corallo, local officials tell federal prosecutors: "Hey,
we'd love you guys to come in here and bring federal charges. You've got
better penalties." Says Mr. Corallo: "Defense attorneys may not like it but
we're seeking justice."

James Sylvester Hester, a self-employed car repairer and salesman, didn't
like it when his case ended up in federal court. Mr. Hester was cruising
along a main road in Charlottesville, Va., in February 2003 when a local
cop pulled him over because the 1991 Chevrolet he was driving didn't have
license plates.

Mr. Hester didn't have a driver's license and initially lied about his
identity. As he was being searched by an officer, Mr. Hester dropped a
yellow Ziploc bag on the ground and attempted to hide it by stepping on it,
according to the police report on his arrest. The officer quickly found
nine small bags of crack cocaine on Mr. Hester. Altogether, Mr. Hester,
then 42 years old, had about 11 grams of crack.

During a subsequent interview at the police station, Mr. Hester admitted he
had been trying to deal drugs for three weeks. His connections were so
limited he had sold little, according to the police report and his lawyer,
Dana Slater. Local officials charged him with possession of crack with
intent to distribute.

In a small town, 11 grams of crack in the hands of a novice raised an
obvious question: Where was it coming from? Federal prosecutors often zero
in on a petty criminal in the hopes of getting information on bigger fish.
That's especially true for drug cases in places where the state penalty for
low-level dealing isn't big enough to entice the defendant to cooperate.

When Mr. Hester, who was free on bail, showed up in state court for a
preliminary hearing, he learned that his case was being transferred to
federal court. Federal prosecutors had obtained a sealed indictment two
weeks earlier, and deputy U.S. marshals now took him into custody.

Unfortunately for Mr. Hester, he had little information to offer the feds.
Ms. Slater, his lawyer, says federal agents questioned him several times
about who was bringing cocaine into Charlottesville. Mr. Hester couldn't
tell them. He had bought the drugs he intended to sell in a parking lot
from a dealer he didn't know. Since he couldn't get any credit for
cooperation Mr. Hester was sentenced in October 2003 to five years in
prison, the minimum required under federal drug laws. Had he been sentenced
in state court, Mr. Hester would likely have faced between seven and 19 months.

In the case of Dane A. Yirkovsky, 41, local officials turned to federal
prosecutors to lock up a man they saw as a career criminal.

Mr. Yirkovsky had been caught burglarizing a church, post offices and other
places in Iowa to support his drug habit in the early 1990s. By 1998,
according to some accounts, he had somewhat cleaned up his act. He went
back to school for a high-school diploma and got a job installing drywall.
He started to live in Cedar Rapids, Iowa, with Edith Turkington, a janitor
at the local community college. Her house had often been a place where
those with drug problems could go to get a meal and a place to stay. In
lieu of rent money, Mr. Yirkovsky agreed to help Ms. Turkington with some
remodeling.

One day in October 1998 as he ripped up an old living-room carpet, he found
a .22 caliber Winchester bullet underneath. He put it in a box in his room
and didn't think about it again, according to the presentence investigation
report.

On Dec. 9, 1998, Cedar Rapids police approached him, saying an
ex-girlfriend had lodged a complaint accusing him of taking some of her
food stamps. Mr. Yirkovsky told the police they were free to search the
house. They found the bullet. Although Mr. Yirkovsky had an extensive
record, none of his past crimes had involved a firearm, and police found no
gun in the house.

Mr. Yirkovsky wasn't arrested that day. Instead, local police conferred
with the state prosecutor and determined that Iowa law didn't prohibit a
convicted felon from possessing ammunition. Federal law did, however, and
the case ended up on the U.S. attorney's desk.

In hectic big-city jurisdictions, federal prosecutors probably wouldn't
have bothered with the case. In Cedar Rapids, though, the U.S. government
decided to get involved. Patrick J. Reinert, the assistant U.S. attorney
who prosecuted the case, says it's worthwhile for the federal government to
go after repeat criminals who don't seem to have rehabilitated themselves
- -- especially if federal law provides the easiest route to prosecution.

Mr. Yirkovsky pled guilty Jan. 31, 2000, to being a career felon in
possession of ammunition. In May, the judge sentenced him to the mandatory
minimum set by federal law for that crime: 15 years in prison. Mr.
Yirkovsky appealed on the grounds of cruel and unusual punishment. The
Justice Department responded that it was in society's interest to keep
behind bars those with lengthy criminal records who cannot be deterred from
further crime. An appeals court, while calling the sentence excessive,
upheld it. The Supreme Court declined to hear the case.

One case of federalizing crime that prosecutors cite as a success story is
the cleaning up of a drug-plagued Washington, D.C., apartment complex in
October 1998. It was designated a "high-intensity drug trafficking area,"
bringing federal money for police overtime and a senior federal prosecutor
to oversee the cases of those arrested. Local police, who often get fed up
making drug arrests because local sentences are light, attacked drug
dealing in the neighborhood with new vigor. In a matter of days, police
arrested at least 10 people for selling crack cocaine .

At the time, the U.S. attorney's office in Washington usually wouldn't take
a crack case to federal court unless it involved 50 grams or more. Few of
those arrested had even been selling five grams, the trigger amount for a
mandatory minimum federal sentence. But because of the federal program,
federal prosecutors looked around and found another weapon: The sales had
happened within 1,000 feet of a school. Because the defendants had criminal
records, the minuscule amount of drugs still triggered a mandatory minimum
sentence of three years unless the defendants cooperated.

"This was not some general policy of taking small narcotics cases to
federal court; this was a focused program," says Richard Edwards, the
senior prosecutor who handled the cases. All of the defendants pled guilty
and several helped authorities implicate others, lowering the crime at the
complex and elsewhere.

It was a similar federal-state program that nailed Mr. McFarland, the Fort
Worth robber of convenience stores. He embarked on his string of heists
just as U.S. attorneys in Texas were teaming up with state police in Texas
Exile, an initiative targeting gun offenders. The initiative took advantage
of strict provisions in federal law against using firearms in multiple
crimes. Every crime after the first one in which the defendant uses a gun
adds 25 years to his sentence on top of the time for the crime itself.

A career criminal, Mr. McFarland had a rap sheet that included four
robberies. At best his crimes would usually land him a couple years in
jail. He was the perfect target for Texas Exile. In an opinion piece
written at the time in a Texas public policy journal, state Attorney
General John Cornyn explained that prosecutors "want to exile habitual
offenders, removing them from the streets."

Since Mr. McFarland had committed four robberies, the last three of them
added 25 years each, or a total of 75 years to his sentence. Combined with
other elements, he ended up with a 97-year sentence. Mr. McFarland, now 45
years old, will likely spend the rest of his life in prison.