No justice by the numbers:
Ball, Peter E.
NO JUSTICE BY THE NUMBERS PETER E. BALL THE FEDERAL SENTENCING GUIDELINES MISADVENTURE Jesus...
...Of course, this did not result in complete evenhandedform...
...Does it provide just retribution...
...While it assigned to the district's most lenient judge (who happened to may be simple arithmetic to add up the points once a judge has sit in the very next courtroom), he or she would likely end up decided on them, there is nothing simple-or precise-about with a sentence of around eighteen months (at least before the translating a unique set of (sometimes disputed) facts into point Commonweal 8 October 1993: 15...
...West?-for the best route home, This sentencing range is determined by assigning points to but in their hearts, the particular crime committed and then making all manner of like mine, the suspicion grew that the ice adjustments for factors such as the defendant's role in the of- was pulling them back faster than they could fense, whether he or she has "accepted responsibility" for his move forward...
...and that the final to quantify facts and assign them point values, judges find them- northern light is as dark as it is cold...
...Nearly three years after his arrest, Lopez-Gil's sentence is still not final, and the case has gone up and down on appeal several times...
...Mixed right into the thirty-one pounds of black lines will require the judge to answer the bizarre questions posed fiberglass that made up the side panels of his two suitcases was above, they will not permit him to even ask the questions that slightly more than five-and-a-half pounds of cocaine, which a judge traditionally ponders before passing sentence: Is the could be extracted only by a chemical process that separated sentence fair...
...If the same de- by a determination about the implication of the facts when they fendant had the good fortune to have his or her case randomly are applied to the standards set out in the guidelines...
...Whichever sentence one thinks is more appropriate, it is defense lawyers and prosecutors over sentencing points...
...14: 8 October 1993 Commonweal convictions, either after trial or as a result of guilty pleas...
...and (2) whether the down sentences that fell anywhere between the minimums and cocaine that was ultimately extracted from Lopez-Gil's suit- maximums set out in the statute that had been violated...
...And so, the parole board would even things 0 f course, a fair criticism of the guidelines must up somewhat by releasing those with relatively long sentences take into account the problems in the previous early, while holding onto those with relatively short sentences sentencing law that led to the guidelines' "re- longer...
...The law that governs sentencing in federal cases, the Although the Lopez-Gil case is an extreme (and soon-to-be Sentencing Reform Act of 1984, did not permit the judge to corrected) example, it evidences a systemic myopia that is one hand down a sentence that he thought fit the crime and the of- of the key reasons why, nearly six years after the noble guidefender...
...In Brooklyn, New York, for example, kind of disparity for another and generating a host of additional where I worked as a federal prosecutor, a typical "mule" ar- problems...
...case should be considered "cocaine base" or regular old co- According to Justice Department statistics, in recent years caine...
...selves having to resolve such off-the-wall questions as how to weigh the suitcase smuggled by Lopez-Gil...
...the guidelines are not guidelines at all, for it is only in excep- and make their way across the vast, drifting tional circumstances that a judge is allowed to depart from the fields of ice...
...as a member of our frequent offenders program...
...of the crime, and whether the victim was especially vulnera- the hills higher, the goals less and less certain...
...In this fashion, Then they had to land, collapse the balloon...
...Faced with sentencing disparities that offended a sense of Given broad sentencing options, different judges were meting fairness and the imperfect remedy of the parole board, Congress out grossly disparate sentences in very similar cases...
...In drug cases, the quantity of drugs is that, one by one, friends became foes and thena big factor, and in all cases a defendant's "criminal history" just when one needed angry love the mostis thrown into the mix...
...They were es, superimpose onto the broad statutory ranges of penalties- to fly over the North Pole, dropping a flag such as ten-years-to-life-in-prison for selling more than a to honor their country...
...itative effect...
...The guidelines have thus shifted the focus in sentencing from the forest to the trees: from whether the ultimate sentence in mandatory minimum sentences for drug crimes came into efany way reflects an appropriate punishment to a battle between fect...
...What is its deterrent effect...
...Thus, in the vast majority of federal cases-which involve more than 50,000 defendants a year-the most important issue is sentencing, and the Federal Sentencing Guidelines have effected the most Virginia V. Hlavsa significant changes in federal sentencing since the first federThe Expedition al criminal statute was enacted into law more than two hundred years ago...
...And, on the second, the guidelines required a prison sentence that was more than a dozen years longer if the drugs were considered "cocaine base...
...But almost at once they lost prison for armed bank robbery-a much narrower range of penal- their guide lines...
...stranger...
...the passage got harder...
...Gaily, the gathered kilogram (2.2 lbs...
...What is its rehabilthe drugs from the fiberglass...
...Then for days they were becalmed...
...Riding on these decisions was well more than a decade of Lopez-Gil's life...
...With Lopez-Gil, the luggage he carried was Lopez-Gil is ultimately sentenced, while the sentencing guidethe cocaine...
...Because the guidelines require courts even the foes died...
...In 1898, three Swedes took off The guidelines, which apply to virtually all federal offens- in a balloon they called the Eagle...
...rested at Kennedy Airport with a kilogram of cocaine would Under the present guidelines, for instance, there are almost routinely be sentenced to five or six years by one judge, con- always factual disputes that the judge must resolve, followed sidered the toughest sentencer in the district...
...of heroin and zero-to-twenty-five-years-in- cheered their flight...
...The hard to argue against the unfairness of allowing such a signifresult is that in what is perhaps the most gut-wrenching of all icant disparity in sentences to turn on which judge happened legal endeavors-the sentencing of a human being-lawyers to be assigned to the case...
...While the First Circuit Court of Appeals in Boston PETER E. BALL is a former federal prosecutor who currently practices criminal and civil litigation at the law firm of Hill & Barlow in "That will be sixty days off of your next misdemeanor Boston, Massachusetts...
...Under the old law, federal defendants were the intricacies of the Internal Revenue Code...
...and judges alike are reduced to bloodlessly parsing the Sentencing The disparities, however, were not quite as dramatic as they Guidelines Manual in the same way that tax lawyers dissect at first appeared...
...These dif- came up with the Sentencing Guidelines...
...While the Federal Sentencing Guidelines in effect at the time called for much stiffer penalties for smuggling "cocaine base," it was unclear whether these penalties were meant to apply to all cocaine base or just the most inimical type, the deadly "crack" cocaine...
...The cocaine was in its "base" form, meaning it had not more than 80 percent of federal criminal cases have resulted in yet been refined into pure powder, or cocaine hydrochloride...
...ble, to name just a few...
...Rather, he was required to focus on and decide two ques- lines experiment began, I have joined the ranks of those who tions of legal and pharmacological esoterica: (1) whether the believe that the guidelines sentencing scheme is neither better weight of the cocaine that Lopez-Gil had tried to smuggle equaled nor fairer than the concededly imperfect system it replaced, in the net weight of the drugs after extraction from the fiberglass which federal judges had virtually unfettered discretion to hand panels or the gross weight of the panels...
...Does it suffiWhen it came time to sentence Lopez-Gil, whose nervous ciently incapacitate a defendant who, if free, might commit demeanor had led to his airport arrest, this strange case got even additional crimes...
...Unfortunately, the cure ferences were occurring not only between the different juris- has turned out to be worse than the disease, substituting one dictions, but within them...
...NO JUSTICE BY THE NUMBERS PETER E. BALL THE FEDERAL SENTENCING GUIDELINES MISADVENTURE Jesus Lopez-Gil was a courier, or "mule," in one of has ruled that the sentence must be based on the gross weight the more ingenious plans devised for smuggling co- of the suitcase panels and that "cocaine base" includes more caine through an airport...
...On the first question, the Federal Sentencing Guidelines, which went into effect on November 1, 1987, mandated a prison sentence that was at least two years longer for the greater quantity of cocaine...
...Gamely, they set off, guessingsentencing range the guidelines dictate...
...ties that the judge must impose in any given case...
...generally eligible for parole after they had served about a third of their sentence...
...down by the nation's more than eight hundred federal trial judges...
...When had swallowed...
...East...
...The new guidelines were a response to ness and led to the criticism that the parole board was, in efperceived inequities in the sentences handed fect, re-sentencing defendants...
...that even when they at last or her actions, whether a weapon was used in the commission found solid ground...
...Unlike most mules, Lopez- than "crack," the matter has been sent back to the sentencing Gil did not have the drugs hidden in his baggage, judge to determine whether the "base" form of cocaine here is strapped to his body, or wrapped in condoms that he "cocaine base," as that term was used in the guidelines...
Vol. 120 • October 1993 • No. 17
