JUDGES IN A STEW ON FEDERAL SENTENCES

Guidelines Seen As Too Rigid, Unfair

U.S. District Judge Stephen M. Reasoner recently shook his head from
the bench, looked out across his Little Rock courtroom and asked a
question more and more federal judges are contemplating: "Why am I
here?"

Little Rock attorney John Wesley Hall Jr. recalled the judge uttering
those words in frustration at a sentencing hearing last month for one
of Hall's clients, who had been convicted of a drug charge.

Reasoner was reacting to the rigid mandates of federal sentencing
guidelines, which judges must follow except in rare circumstances.
While the guidelines are designed to give judges some leeway within a
mathematically deduced penalty range, in this case the range was
narrow: 120 to 121 months.

A federal judge can "depart" upward or downward from the guidelines --
but only if his reasons fit into a designated category of unusual
circumstances and the sentence remains within a wider range
established by federal statutes.

If the judge's reasons for wanting to tinker with the guideline range
do not fit the criteria, the rumble from his bench likely will echo a
bigger tremor quaking just under the surface of federal courtrooms
across the country.

Fueled by a July 28 directive that U.S. Attorney General John Ashcroft
issued to all U.S. attorneys, and by a section of law that preceded
it, some judges hope the tremors will soon break out in the right
places and lead to new ground being broken in the nation's sentencing
laws.

"It's hard to find a federal judge who finds the sentencing guidelines
are working well," said U.S. District Judge G. Thomas Eisele, a senior
judge who has presided in the Eastern District of Arkansas for 33
years. "It's a system I've said is not worthy of this country."

Eisele and other federal judges complain that the guidelines, first
implemented in 1987 and since amended by various congressional
mandates to increase minimum drug sentences, are undermining judicial
independence -- the discretion to tailor a sentence to the case at
hand.

Judges lament that the system, originally designed to reduce disparity
in sentencing, in reality is unfair to defendants, victims and society
as a whole. The judges say the guidelines needlessly fill the nation's
prisons with nonviolent offenders at taxpayer expense while more
dangerous offenders too often get off easy.

According to the U.S. Bureau of Prisons, more than 54 percent of the
nation's approximately 128,090 sentenced federal prisoners in 2002 --
or 70,000 inmates -- were incarcerated on drug offenses, some so minor
that the offender sometimes would receive probation or less in some
state courts.

"The time has come for major reform in the system," Senior U.S.
Circuit Judge Myron Bright of Fargo, N.D., a 35-year veteran of the 8
th U.S. Circuit Court of Appeals in St. Louis, wrote in a July 18
opinion that he concluded with the words, "Is anyone out there listening?"

Defense attorneys, upset by judicial restrictions that make it harder
for their clients to get downward departures -- a sentence below the
guideline range -- also are in an uproar.

"James Madison is rolling in his grave," Hall, secretary of the
National Association of Criminal Defense Lawyers, said of the nation's
fourth president, known as the father of the U.S. Constitution and its
Bill of Rights. "The guidelines are a farce."

Blake Hendrix, another Little Rock lawyer who frequently practices in
federal court, said the discontent has become so pervasive that he
would not be surprised by a "general revolt."

"You can only hamstring the federal judiciary for so long," Hendrix
said. "I expect a titanic battle between the Justice Department and
the judiciary. It seems it's brewing."

"There definitely is a movement" to lessen the restrictions on judges
that are embedded in the guidelines, said Carmen Hernandez, an
attorney adviser at the Administrative Office of the U.S. Courts in
Washington. Hernandez, who keeps defense attorneys abreast of changes
to the guidelines, is widely regarded as a national expert on the
legal provisions that she and Eisele say are misnamed "guidelines"
because they actually are mandates.

Protect Act

The latest policy change furthering the furor stems from the PROTECT
Act, signed into law by President Bush on April 30. The act is best
known for its "Amber Alert" provision, which established a nationwide
warning system for kidnapped children.

The act's primary and popular goal was to strengthen laws concerning
crimes against children -- hence its acronym, which stands for
Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today. Tucked into it was a section dubbed the "Feeney
Amendment." Sponsored by Sen. Tom Feeney, R-Fla., it calls for
tightening provisions of the guidelines concerning all federal crimes
to restrict downward departures and for tracking which federal judges
frequently hand them out.

The amendment, drafted by U.S. Department of Justice staff, directed
Ashcroft to implement one of two policies by July 30 to dissuade
judges from giving downward departures. Ashcroft in turn directed the
nation's federal prosecutors to fight departures except in rare
circumstances and to keep track of downward departures that judges
give over prosecutors' objections.

Ashcroft has said it was the "less onerous" of the two policy choices,
the other one requiring the reporting of every departure to the Senate
and House judiciary committees.

Still, judges see the change as infringing deeper on their
independence and their ability to impose reasonable and just
sentences. Eisele calls the Feeney Amendment "an encroachment on the
separation of powers," and numerous other judges agree.

"An already difficult situation has been made worse by Congress's
recent passage of certain provisions in what is called the PROTECT Act
of 2003," Bright wrote in his July 18 opinion. Acknowledging his role
is not to criticize Congress, Bright said nonetheless, "This enactment
will exacerbate the problems with the guidelines by making it even
more difficult for district judges to do justice under the law as
circumstances warrant."

Bright quoted U.S. District Judge John S. Martin Jr. of Manhattan, who
resigned in June after 13 years, citing the increasing limitations on
judicial discretion.

"I no longer want to be a part of our unjust criminal justice system,"
Martin said in a June 24 editorial in The New York Times.

The new law gives the U.S. Sentencing Commission, an independent
agency headed by another 8 th Circuit judge, Diana Murphy of
Minneapolis, until Oct. 30 to respond to the Feeney Amendment.

The commission was created to draw up the guidelines in response to
Congress' Sentencing Reform Act of 1984, the federal response to
public outcry for stronger and equal punishment for criminals.

"Efforts to repeal some parts of the Feeney Amendment" already are
under way, Hall said.

"It's taking all the reasons to depart downward away," Hall said of
the legislation, "and Congress doesn't have the balls to stand up" and
resist.

Addressing Disparities

Shortly after the guidelines became the law of the land during the
Reagan administration in the 1980s, Eisele ruled them
unconstitutional. His decision was upheld by the 8 th Circuit, which
presides over appeals in Arkansas and six other states. But ultimately
the U.S. Supreme Court, addressing similar rulings across the country,
declared the guidelines constitutional in 1989.

Their original purpose was noble: to standardize sentences for similar
crimes committed across the country. The guidelines sought to prevent
such disparities as a cocaine dealer in California getting probation
while a dealer in Arkansas selling the same amount got 30 years.

But the guidelines, some argue, often have had the opposite effect.
"There's more disparity now," said Eisele, who like Reasoner is a
Republican appointee. "The main problem with the guidelines is they
put sentencing decisions on everyone but the judges."

Agreeing strenuously is U.S. District Judge Bill Wilson Jr., a
Democratic appointee with 10 years' experience.

"The rigid guidelines that they have now have not led to uniform
sentences," Wilson said. "The guidelines and mandatory minimums put
the vast majority of discretion in the hands of the prosecution. ...
I'm not against a reasonable amount of prosecutorial discretion, but
there's an overload of it now."

Both judges said that police officers on the street know that if they
want to put someone away for at least 10 years, they need to delay an
arrest until the person is in possession of a high enough quantity of
drugs to trigger a "mandatory minimum" sentence. Furthermore, they
said, the mandatory minimums discourage trials and encourage unjust
plea agreements fashioned by federal prosecutors.

Bud Cummins, U.S. attorney for the Eastern District of Arkansas,
acknowledged that roughly 90 percent of all cases in the district that
includes Little Rock are disposed of by plea agreement. "I've seen
numbers between 87 and 92 percent," Cummins said. "I think that's
pretty consistent with figures nationwide."

But this process can go awry, as it did recently in a case before
Wilson.

Of three men charged in a drug conspiracy, the two considered the
lesser players -- neither had a criminal history -- went to trial and
were convicted of conspiracy, which has a mandatory 10-year minimum
sentence. The third man, whom prosecutors acknowledged was the
mastermind of the conspiracy, pleaded guilty when prosecutors agreed
to dismiss the conspiracy charge and recharge him with a lesser crime,
misprision of a felony.

Sentencing guidelines recommended zero to six months in prison for the
misprision offense, or failing to report knowledge of another crime.
Wilson, convinced partly by trial testimony that the third man was the
mastermind, departed upward from the guidelines in an attempt to, as
he said, be more just. But his efforts were limited by federal
statutes that set the maximum sentence for the misprision offense at
three years. The man's attorneys are appealing the three-year
sentence, saying that their client was not convicted of conspiracy and
that Wilson did not offer a valid enough reason under federal law to
depart from the guidelines.

Wilson later wrote in an order about the case, "Before the guidelines
and mandatory minimums ... I could have gone a long way toward
correcting what I believe to be a serious inequity."

The judge said that he does "not advocate going back to the old days,
when a judge had unfettered discretion," but "I think some guidelines
that are true guidelines, with a right for both sides to appeal, would
be in order."

Cummins said he is "certainly comfortable" with the guidelines because
their aim is uniformity and fairness. Without them, "in one district,
you may have a lenient approach to crime while 100 miles away, a judge
maxes out everybody. That doesn't seem to be a just system, and it may
inject too much of a judge's personal prejudice."

Cummins, appointed by Bush, said he believes the guideline ranges
"still give judges a lot of discretion." But, he said, "I understand
the judges' viewpoint. ... We don't want a robot sentencing people."

Wilson said Cummins' office generally acts reasonably, but "I don't
think the Bill of Rights was bottomed on the idea of a goodguy
prosecutor." He said judges must have authority to intercede when bad
deals are made.

"A plea bargain done right is a good thing for the justice system,"
said the former criminal defense attorney, "but the guidelines have
thrown them out of kilter."

'Soft' on Justice

U.S. Rep. Vic Snyder, D-Ark., a lawyer on the House Judiciary
Committee, said he opposed the Feeney Amendment because it's "just
another example of legislators thinking they're fighting crime by
somehow tying the hands of judges, and I don't think that's the way to
go."

Still, he said he voted for the final bill that became the PROTECT Act
because it contained "a lot of good stuff."

"If you wait to vote for something that has everything in it, you may
never vote for anything," Snyder said.

"It's a complex issue. It's one of those issues that when you first
look at it, you think, 'How can you be against being soft on
criminals?' But what you're being soft on is justice. Sometimes
justice requires long sentences; sometimes it requires sentences that
aren't so long."

Rep. John Boozman, the only Republican member of Arkansas'
congressional delegation, said he remembers the Feeney Amendment as "a
noncontroversial part of a big bill that did a lot to protect children."

But he said judges have raised some legitimate concerns. "What I will
be doing is talking to some of our U.S. attorneys and judges," he
said. "I feel this issue needs to be followed up on."

A member of the House Speaker's Drug-Free America Task Force, Boozman
said he would like the panel to take a closer look at mandatory
minimums and their effect on drug crimes.

"I think it really is a deterrent to drug use, but certainly the
punishment needs to fit the crime," he said.

Meanwhile, at least two U.S. Supreme Court justices, Anthony Kennedy
and Chief Justice William Rehnquist, recently have spoken unfavorably
about the sentencing guidelines and the effect of the Feeney Amendment.

"Our resources are misspent, our punishments too severe, our sentences
too long," Rehnquist told the annual meeting of the American Bar
Association in San Francisco.

Rehnquist has said the Feeney Amendment will "seriously impair the
ability of the courts to impose just and responsible sentences,"
according to the Wall Street Journal.

"Rehnquist's remarks indicate basically the position of the third
branch [of government]," Eisele said.

He showed a reporter a 145-page report published April 11 by The
American Law Institute, an 80-year-old organization of about 3,000
judges, lawyers and law teachers with a mission of trying to improve
the law.

The report, which makes suggestions for state sentencing reforms,
criticizes "the ungainly federal machinery" known as the guidelines
and "the labyrinthine arithmetic of federal law."

"The total process is a dizzying progression of calculations that make
it hard to remember that the interests of human beings turn on the
outcome," the report says, calling for simpler rules.

If states follow the institute's suggestions, Eisele said, "It may be
they will lead us out of this dismal swamp."

Then "maybe this commotion occasioned by the Feeney Amendment will
bring the public's attention to what's wrong with the guidelines."