Sentencing Guidelines

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Editorial: More discretion needed in sentencing rules for illegal drug sellers who are at lower levels

Location: 
PA
United States
Publication/Source: 
The Patriot-News (PA)
URL: 
http://www.pennlive.com/editorials/patriotnews/index.ssf?/base/opinion/1173903931290950.xml&coll=1

Op-Ed: A draconian double standard on drugs

Location: 
FL
United States
Publication/Source: 
Orlando Sentinel (FL)
URL: 
http://www.orlandosentinel.com/news/opinion/orl-chap1307feb13,0,4043638.story?coll=orl-opinion-headlines

Op-Ed: End draconian double-standard on cocaine use

Location: 
Chicago, IL
United States
Publication/Source: 
Baltimore Sun
URL: 
http://www.baltimoresun.com/news/opinion/oped/bal-op.chapman05feb05,0,5744425.story?coll=bal-oped-headlines

Supreme Court to Revisit Federal Sentencing Issues (New York Times)

Location: 
United States
URL: 
http://www.nytimes.com/2006/11/04/washington/04scotus.html?_r=1&oref=slogin

Sentencing: US 3rd Circuit Court of Appeals Throws out Crack Cocaine Sentence

In a ruling Monday, the US 3rd Circuit Court of Appeals in Philadelphia threw out a 24-year prison sentence for a man possessing less than three ounces of crack cocaine. The court held that the US District Court judge who sentenced the man erred in believing he had to sentence the man based on the 100:1 quantity disparity between crack and powder cocaine. Such sentences are no longer mandatory, said the appeals court, only advisory.

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Under a 1986 law passed in the midst of a wave of anti-drug hysteria, the US Congress enacted a two-tier sentencing scheme for cocaine defendants with crack defendants facing sentences decades longer than powder cocaine defendants for possessing the same amount of the drug. But the appeals court held that since the US Supreme Court last year ruled that federal sentencing guidelines were only advisory and not mandatory, sentencing judges need not be bound by the guidelines.

The three-judge panel held that defendant Johnny Gunter was entitled to a new sentencing hearing. "The limited holding here is that district courts may consider the crack/powder cocaine differential in the guidelines as a factor, but not a mandate, in the... sentencing process," wrote Judge Thomas Ambro for the court.

Assistant US Attorney Robert Zauzmer told the Philadelphia Inquirer the ruling was likely to be cited by every defendant in a crack case. "This is a significant opinion which we are studying closely," he said, adding prosecutors were considering whether to ask the appeals court to reconsider the decision or appeal to the US Supreme Court.

Assistant Federal Defender David McColgin, meanwhile, told the Inquirer the ruling would help reduce the racial disparities existing in cocaine sentencing. "This has a great impact in helping to reduce the racial disparity that stems from that ratio," McColgin said.

Feature: Federal Sentencing Reform Goes NASCAR

With the federal prison system stuffed to the gills and still growing, pressure for sentencing reform is building. One bill aimed at helping ex-offenders, the Second Chance Act, is moving in Congress and could pass this fall. Coming right behind it is H.R. 3072, a bill that would reintroduce parole into the federal system. And in a novel effort to broaden support for the parole bill, some of its supporters are bringing the issue to the massive NASCAR racing audience.

In the first of series of NASCAR events, on August 23 the Carter 2 Motorsports team will compete in the race at Bristol, Tennessee, using that opportunity to publicize the parole bill, as well as the organizations backing the effort, Federal CURE and FreeFeds. More than 160,000 are expected to attend, with a television audience estimated at 3 million. The effort will also be the focus of a PBS documentary with an audience estimated at between 10 and 14 million viewers when it reaches the air.

"I was a federal prisoner myself," said Carter 2 Motorsports main man Roger Carter II, who served nearly three years for a white collar offense. "I met a lot of wonderful people in prison, nonviolent drug offenders. I was able to go home after a couple of years, but these guys are serving 10, 20, 30 years or more," he told Drug War Chronicle. "Don't get me wrong. I believe people who break the law should be punished, but this is about fair and just punishment. What gets you six months in the state courts can get you six years in the federal system, and that's just not right."

While Carter's effort is relatively recent, he is encouraged by the reaction he is getting. "The support has been overwhelming," he said. "People are really susceptible to this and the press is eating it up. The whole idea is to get this before the public because people need to see where their tax dollars are going. Anyone who looks at H.R. 3072 is pleased to see it is a common sense approach to imprisonment instead of just throwing people away for no reason," he said, adding that he has H.R. 3072 messages painted on his NASCAR truck and stock car, as well as on his web sites and e-mails.

Since Congress abolished parole in the "sentencing reform" of 1986, the federal prison system has grown progressively larger, filled increasingly with nonviolent drug offenders doing lengthy sentences with no chance of more than highly limited early release for good behavior. As of this week, the federal Bureau of Prisons put its prisoner count at more than 191,000, with 54% serving time for drug offenses.

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George Martorano (courtesy We Believe Group)
That number includes George Martorano, the man who carries the unlucky distinction of being the longest serving nonviolent offender in federal prison to date, a fate he earned through a first-time marijuana offense. Martorano is now 23 years into a life sentence with no chance of parole. It was Martorano's plight that inspired Florida resident John Flahive to join the fight for sentencing reform.

"I was courting a young lady, and one night when I was at her house, the phone rang with a message. It was a call from a federal inmate," Flahive explained. "It was George, and the young lady was his sister. She told me he was doing life without parole and I asked her how many people he killed," he told the Chronicle. "He didn't kill anybody. He was involved in a deal -- around 2400 pounds of pot. After a while, I went to visit him, and found he was a pretty nice guy -- he writes books and teaches other inmates and has a perfect prison record. We figured we had to help him out somehow, so we created the We Believe Group to try to raise awareness of his plight."

It has been an education, said Flahive. "I started working on this five years ago. Before that, I wasn't involved, I didn't even vote," he explained. "I figured George's case was a screw up, but as I got more involved, I realized there were thousands of Georges rotting away in there." As a result, Flahive has broadened his activism and is now working to get sentencing reform legislation through Congress. He, too, will be heading to the NASCAR tracks along with Carter in an effort to bring the message to the masses of racing fans.

"I'm working with Federal CURE on this," he said. "They've got two motor homes that we will dress up with H.R. 3072 and we'll have lots of literature to hand out. People listen when you tell them if they pay federal taxes they are affected by the cost of the federal prison system. Federal parole could save $4 billion a year," Flahive claimed.

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Rep. Danny Davis
The federal parole has been around for awhile and was originally sponsored by Rep. Patsy Mink (D-HI), but since her unexpected death in 2002, Rep. Danny Davis (D-IL) has taken up the gauntlet and is now the lead sponsor. Davis was traveling and unavailable for comment this week, but his communications director, Ira Cohen, told the Chronicle the bill could use all the help it can get. "Rep. Davis is proud of all that he has accomplished with the Second Chance Act and the parole bill, and he continues to look for support," said Cohen.

A source close to Davis told the Chronicle that Davis is concentrating this fall on the Second Chance Act as a means of opening the door to a serious discussion of sentencing reform in Congress. "The strategy has always been to press for another bill to pass first, and the Second Chance Act is very close now," the source said. "If it passes, the congressman intends to use that opportunity to have this broader discussion on the parole bill because it will open up the whole issue of broader federal criminal justice reform."

But Flahive, Carter, and 100,000 federal drug war prisoners aren't waiting for Congress to act -- they're pushing it to act. In addition to the Bristol race on the 23rd, Carter and his H.R. 3072 car and truck will be racing NASCAR tracks at New Hampshire, Martinsville, and Homestead and taking the message to the masses. "Like anything else, once this gets some momentum, once politicians see they can benefit from voting for this, it'll be all over. We're here to help the people get the politicians to that point."

Sentencing: Federal Judges More Likely to Acquit Than Juries

Federal judges are much more likely to acquit defendants than juries are, according to a review of some 77,000 federal criminal trials between 1989 and 2002. Juries convicted 84% of defendants, while judges in bench trials convicted only about half. The phenomenon is recent, with judges and juries convicting at about the same rate from the 1960s through the 1980s, and prior to that, judges were much more likely to convict than juries.

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The findings come from a paper published by University of Illinois College of Law professor Andrew Leipod, "Why Are Judges So Acquittal-Prone?," published in the Washington University Law Quarterly and discussed at some length at the Volokh Conspiracy blog. According to Leipold, he was puzzled at the shift and sought an answer.

"The core problem," he wrote, "is to find something about criminal trials that has changed since the late 1980s, something that would affect judges but not juries." The evidence suggests a likely culprit, Leipod argued. "I think the sentencing guidelines best fits this description. The guidelines took away a huge amount of sentencing discretion, which meant that judges were more often faced with cases where they knew that a conviction would result in a harsh - maybe too harsh - sentence. We don't have to say that judges were acting 'lawlessly' to reach the unremarkable conclusion that judges may hold the government even more tightly to its burden of proof when the stakes are high and unforgiving."

Because judges do not fill out forms showing what factors they weigh when they rule, any evidence of a link between conviction rates and the sentencing guidelines is necessarily indirect, but, Leipold notes, it is probably not coincidence that "with the Guidelines really hitting stride just as the judicial conviction rate started to slide." Many judges "were harshly critical of the how the guidelines made it harder for them to do justice in individual cases," he noted.

[Editor's Note: One might suppose that mandatory minimum sentencing is also having this effect on federal judges -- an equally, sometimes harsher federal sentencing system that is parallel to and interlocks with the guidelines. Congress enacted mandatory minimums very hastily, two years after creating the sentencing guidelines, following the 1986 overdose death of University of Maryland basketball star Len Bias.]

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