Poetry:

...While the guidelines do inCourt of Appeals in Boston held that the sentencing judge should clude certain "relevant conduct" in their calculus and, in limcount the full weight of the suitcase panels in figuring the weight ited circumstances, direct the court to apply the specific guideline of the cocaine...

...ble, to name just a few...

...Remember the Lopez-Gil case...

...The parties It solved a lot of problems...

...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...

...Germany and constantly switching his allegiance from com- 10/8/9 munism to fascism and back again in a desperate effort to stayL Commonweal 8 October 1993: 1...

...that even when they at last or her actions, whether a weapon was used in the commission found solid ground...

...dant a "minimal" player (minus 4 points), a "minor" player (minus the amendments add a hefty three hundred pages...

...lines adaptive, they also make them less user-friendly...

...In one case in which I was involved, the prose- have ever had, and in this way not only trample on what tradicutor, the defense counsel, and the probation department (which, tionally was the judges' domain, but create even more disparas an arm of the court, makes the initial calculation for the court ity in sentencing...

...Where a defendant is convicted of mul- Commission can arbitrate how certain recurring fact patterns tiple counts, are the counts "closely related" so that the defendant should be scored under the guidelines, many (if not most) cases does not get additional points for each count...

...Thus, while the Sentencing nerable" (plus 2 points...

...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...

...the passage got harder...

...Some supporters argue, using certain statistics of their ultimately decide conflicts between the Appeals Courts, its re- choosing, that notwithstanding the problems, the guidelines have view in these matters is discretionary and the sheer volume of still led to a system of more-uniform sentencing...

...Then there's 2 points), an "organizer," "leader," "manager" or "supervisor" the debate over which guideline applies: the old or the new...

...At least three Appeals Courts have reached the that relates to the most-serious crime that was committed rather exact opposite conclusion about whether the weight of the un- than the crime that has been charged, there is no question that usable portion of a drug mixture should be counted in deter- in many cases-like the one involving the sale of illegal armsmining the quantity of drugs...

...D scription to COMMONWEAL for only $12...

...Of course, this did not result in complete evenhandedform...

...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...

...Then for days they were becalmed...

...2. My relationships with colleagues Given the high quality of most-although certainly not allfederal judges, I would rather entrust them with the sentencing are deteriorating because I keep decision, with the hope that, in most cases, the sentences they hounding them to see their copies mete out are those most likely to be appropriate and fair...

...Given that the guidelines are the result of a great deal of hard work by a number of very intelligent people, it is hardly surprising that they have their supporters and their good points...

...But almost at once they lost prison for armed bank robbery-a much narrower range of penal- their guide lines...

...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...

...The panel would consist of the sentencing judge WEAL because the folks who go to and two of her or his colleagues...

...cause the guidelines are so complex and contain many cross One of the harsher criticisms leveled at the guidelines comes references, they are subject to numerous interpretations with from the federal bench...

...to a prohibited country by providing the government with false Another reason the guidelines fail to meet their objective of documents, if the prosecution charges that defendant with iluniform sentencing is because of contradictory interpretations legally exporting arms, the minimum guidelines' sentence is given by the twelve different Federal Appeals Courts that col- about three-and-a-half years in prison...

...Virtually every case and every defendant is different, making 1. I spend an inordinate amount of uniformity undefinable, let alone elusive...

...Indeed, the Sentencing Commission's latest round of amendments, set to take effect this November 1, resolve the Lopez-Gil issues by mandating that in the future, "cocaine base" will mean only "crack" and that the unusable portion of a drug mixture, such as the fiberglass in Lopez-Gil's suitcase, will not be counted in the weight of the drugs...

...Under the old law, federal defendants were the intricacies of the Internal Revenue Code...

...In 1898, three Swedes took off The guidelines, which apply to virtually all federal offens- in a balloon they called the Eagle...

...Thus, the Appeals Courts, which are re- treated criminals too leniently point out that the guidelines have quired by law to hear virtually every federal criminal appeal resulted in generally longer sentences, particularly in the area that is taken, are often the final word on guidelines' interpre- of white-collar crime...

...Moreover, be- do not fit into such a mold...

...The current pubin answering questions such as the following: Was the defen- lished edition of the guidelines runs to nearly four hundred pages...

...have to look back through layers of amendments to find the state-of-the-art at the time-of-the-crime...

...Although the Supreme Court can of Justice...

...Whichever sentence one thinks is more appropriate, it is defense lawyers and prosecutors over sentencing points...

...When she made a movie about a Jewish boy shuttling between the World War II armies of Russia and I prefer a full year's subscription at $39...

...In addition, its caseload allows it to hear only a small fraction of cases where those who believe that in the past the criminal justice system its review is sought...

...Yet, in my view, the guidelines fail because they seek to achieve an unobtainable objective: uniformity of federal sentences...

...LJ *RYE or Like most matters of complexity, the debate over the Federal Sentencing Guidelines does not lend itself to easy resolution...

...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 Some of the controversies that don't make it to the Supreme Court are resolved by what is known as the Sentencing Commission...

...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...

...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...

...TRUE answer...

...of COMMONWEAL...

...This permanent body, which drafted the first set of guidelines and constantly monitors guidelines' sentencing nationally, proposes hundreds of amendments every year or so that go into effect unless Congress blocks them...

...10038 A 'GARDEN' TO REMEMBER Trial subscription offer: 11 issues for $12 Name Address gnieszka Holland's temperament is bright, her instincts are theatrical, and her subject City, State, Zip matter is oppression...

...Thus, if Lopez-Gil had been arrested the government can largely control the sentence by its selecat an airport in Florida, rather than the one at which he was ar- tion of charges...

...By taking the most time traipsing off to the library to difficult decision a judge has to make in a criminal case-one sneak a peak at the latest issue of that calls upon all the judge's ability, experience, and wisdomCOMMONWEAL...

...But this constant upgrading has created its own problems...

...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...

...The First Circuit is only a year-and-a-half in prison...

...The Federal Sentencing Guidelines were a well-intentioned response to a real problem...

...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...

...Also, the availability of "downward detations for the federal districts that are in their jurisdictions...

...In (plus 2 to 4 points, depending on the circumstances), or none any event, as every lawyer knows, you cannot write a code to of the above (no adjustment...

...of heroin and zero-to-twenty-five-years-in- cheered their flight...

...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...

...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...

...East...

...Toward this end, all federal district courts could put into place a program that some already employ: creating a sentencing panel 3. I miss important issues of COMMONfor each case...

...But if the charge is fallectively hear appeals from all the federal judicial districts in sifying government forms, the maximum guidelines' sentence the country...

...generally eligible for parole after they had served about a third of their sentence...

...Gamely, they set off, guessingsentencing range the guidelines dictate...

...For example, in the terpretation and on a calculation that was different from all of case of a first-time offender who illegally ships military weapons the other proposals...

...Prior to sentencing, all three judges would review and discuss the case, giving the sentenc- early Mass always get to the maging judge the benefit of the other judges' opinions before pass- azine rack first...

...SCREEN r COMMONWEAL , HOLLAND'S MAGIC 15 Dutch Street, New York, N.Y...

...The court settled on a fourth in- the direction of the guidelines' analysis...

...ties that the judge must impose in any given case...

...Because the guidelines require courts even the foes died...

...These dif- came up with the Sentencing Guidelines...

...and that the final to quantify facts and assign them point values, judges find them- northern light is as dark as it is cold...

...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...

...While there • By using the special coupon below, is some facial appeal to a scientific-sounding system that assigns sentences based on point totals, getting to those totals has you can start an 11-issue trial subproven to be a very imprecise and unwieldy venture...

...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...

...In this fashion, Then they had to land, collapse the balloon...

...Unfortunately, more than zero, we have a solution for your half a decade of experience under the guidelines has demon- problems-a personal subscription strated that, when it comes to the grim business of determining the punishment for those who have broken society's rules, to COMMONWEAL...

...The parole board would continue to serve in its admittedly imperfect role of providing a national perspective • Score yourself one point for every on sentences...

...ing sentence...

...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...

...The guidelines and those who draft- • If your total score is greater than ed them deserve nothing but respect...

...rested in Puerto Rico, his sentence would almost certainly have All this is not to say that the Sentencing Guidelines are withbeen based on the net weight of the cocaine rather than the gross out their champions, one of the most notable being the Department weight of the suitcase panels...

...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...

...Many federal judges believe that the respect to which guideline should apply and how the points should guidelines give prosecutors more say in sentencing than they be calculated...

...selves having to resolve such off-the-wall questions as how to weigh the suitcase smuggled by Lopez-Gil...

...facts and people are not easily reduced to formulas...

...down by the nation's more than eight hundred federal trial judges...

...While the amendments make the guide"Ah, yes, many's the time I retired to my chambers to toss a coin...

...Was the victim particularly "vul- cover every factual permutation...

...of the crime, and whether the victim was especially vulnera- the hills higher, the goals less and less certain...

...and reducing it to a mathematical formula, the guidelines substitute one imperfect system for another...

...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...

...Gaily, the gathered kilogram (2.2 lbs...

...The prosecutors exercise this power because and the parties) each came up with a different interpretation by deciding what crime to charge, in many cases they control and a different bottom line...

...partures" for defendants who have provided "substantial as16: 8 October 1993 Commonweal sistance" to the government has given prosecutors a powerful tool for persuading (or, some critics say, coercing) defendants to cooperate, which in turn has resulted in more convictions of other wrongdoers...

...U FALSE...