On Monday, Presidents’ Day, Hamedah Hasan petitioned President Barack Obama to commute her 27-year sentence for the first-time, nonviolent offender’s tangential role in a crack distribution conspiracy. She has already served 17 years of the sentence imposed under then-mandatory federal sentencing guidelines.
Days prior, Christopher Handley chose to plead guilty to importing comic books featuring drawings of purported minors engaged in sex acts rather than challenge his arrest on First Amendment grounds, ensuring he would receive a six-month prison stint instead of the 15-year bid he risked if convicted at trial of the same crime. The law he was accused of breaking was enacted by Congress in 2003.
Hasan and Handley are both indicative of trends that have led to an explosion of the federal-level justice system: An increase in the number of federal criminal statutes beginning in the 1980s and the imposition of mandatory minimums and draconian sentencing guidelines that have moved life-changing decisions from open court to prosecutors’ back rooms, making accountability difficult and pushing the federal prison system past its limits, a Sunlight analysis of data from Justice Department sources shows.
The number of federal criminal prosecutions in fiscal year 2009 jumped nine percent from the previous year–a 42 percent increase in the last five yearsdespite the fact that crime has been on the decline for many years. Since 1982, federal criminal justice expenditures have exploded from $4.2 billion to $36 billion, according to the Bureau of Justice Statistics, with Bureau of Prisons spending rising 20-fold and still leaving penitentiaries overcrowded.
The dire situation has led some politicians to introduce bills to reduce the federal prison population this Congress; it’s conceivable that real-time information-sharing made possible by recent technology could help achieve consistency in sentencing without the judicial hand-tying.
Having the data available in a downloadable format does more than allow analysis showing increasing conviction rates, spending on prisons and fluctuations of the crime rate–all crucial information for assessing the performance of the system. Real time reporting of the data might ease one of the principal factors exacerbating the problem: Judges could compare their sentences to those of their colleagues, eliminating the need for sentencing guidelines and mandatory minimums.
Congress, crime bills and consequences
Written during an election year in the midst of a crime wave, the 1984 Sentencing Reform Act established “sentencing guidelines”–a matrix that, taking input such as the crime and level of cooperation, provided narrow ranges within which judges were required to sentence offenders. It created the U.S. Sentencing Commission, an independent agency that sets the guidelines and advises the White House and Congress on federal crime policies. The act also took the radical step of eliminating parole in the federal system.
The act was designed to produce fairness through consistency, using a point system to calculate sentences based on certain metrics, thereby ensuring that an offender in one courtroom didn’t get a term that differed widely from a person convicted of the same crime in a different court.
The Anti-Drug Abuse Act of 1986 followed up by creating a framework of harsh mandatory minimum sentences determined by the type and quantity of drugs involved, and ignoring other facts in the case, including mitigating circumstances. Conspiracy statutes are applied liberally, meaning those with minimal involvement could face serious charges. Some of the act’s stipulations have been criticized as arbitrary, including setting the punishment for possession of crack cocaine at 100 times that of the powdered form.
While both laws limited the sentences judges could hand out, neither eliminated discretion, which was transferred to the prosecutors. Considering the federal government’s near-total conviction rate and the fact that sentences are determined with significant precision by guidelines for each offense charged, federal prosecutors essentially decide a person’s fate when choosing which statute to apply, many judges and lawyers say.
“It is important to note as well that prosecutorial discretion is essentially conducted behind closed doors, whereas that of a sentencing judge is conducted in an open courtroom,” Marc Mauer, executive director of the Sentencing Project, testified before Canadian legislators. “The ‘hidden’ nature of the exercise of prosecutorial discretion makes these dynamics particularly prone to producing such disparities.”
The lack of transparency extends beyond prosecutors, critics say. The U.S. Sentencing Commission is insulated from political accountability, and can operate in the dark. “The commission can act without defending its decisions or its decision-making process,” the libertarian Cato Institute wrote in a policy analysis. “The sentences for violent crimes were increased, for instance, ‘where the Commission was convinced that they were inadequate’without any explanation as to what made a punishment ‘inadequate’ or how the commissioners became ‘convinced.'”
Defendants like a California criminal defense lawyer often feel powerless against a faceless bureaucracy, but judges too complained that guidelines and minimums tied their hands, noting that circumstances of individual cases could be more complex and subjective than the criteria hard-coded in the guidelines.
Congress acknowledged shortcomings with mandatory minimums in 1994 by adding a “safety valve,” which allows judges to go below the minimum for certain first-time, non-violent offenders.
The Supreme Court intervenes
Ten years later in the landmark U.S. vs. Booker, binding guidelines were ruled unconstitutional, relegating them to “advisory” status, in part because judges were instructed to take into account evidence that had not been proved in court beyond a “more likely than not” standard. For example, a jury could quickly convict a person of distributing one ounce of marijuana, then, at sentencing, prosecutors could reveal to the judge–without proving it–that the amount of drugs found was actually 1,000 pounds. The sentencing guidelines required the judge to consider the additional information when sentencing the defendant, despite its not having been introduced into evidence during the trial.
After Booker, judges occasionally, but rarely, took the liberty of departing from the guidelines, and those who did provided a basis for appeal. (The sentencing commission says a “sentence is unreasonable if the district judge fails to consider the sentencing guidelines,” and can be overturned.)
Still, judges who went outside the guidelines almost always went downward, not up, indicating they believe the guideline sentences are too high. In 22,500 drug trafficking cases in the year after the ruling, judges used leeway granted by Booker to sentence below the guidelines 1,450 times, and only three times invoked it to deliver harsher sentences than the guidelines allowed.
Importantly, Booker did not do away with mandatory minimums, and did nothing for those who had already been sentenced under the old interpretation.
The husband of Gwen Bethea-Davis, a 44-year old mother and recent college graduate in Atlanta (he did not want to be named out of fear of causing problems in the prison) is one such inmate, sentenced in 1988 to 30 years for possession of 63.5 grams of crack–a little more than a tennis ball weighs–as a career offender after pleading guilty out of fear that a trial and conviction would lead to life. The judge heard certain mitigating circumstances–previous charges were incurred as a juvenile, his parents were uneducated, baffled by the legal system and chemical dependent–but was barred from taking them into account by the minimums, she said. If the judge had not been, “I don’t think he would have gotten 30 years. He deserved time and accepts responsibility, but the amount of time they gave him is ridiculous.”
Defense lawyers and their clients say that the threat of extremely long sentences coerces defendants into accepting pleas, and that if the government believed crimes warranted the sentences specified by guidelines, it would not reduce them to a fraction of that for cooperation. Roughly 96.3 percent of federal defendants plead guilty; those convicted at trial receive a sentence of, on average, three times that of those who plead.
Indeed, implicating others–providing “substantial assistance”–is nearly the only way for prosecutors to sanction a below-guideline sentence. Between October 1, 2008 and September 30, 2009, sentences were lowered for 9,062 defendants who helped ensnare others, mostly in drug cases.
Friends of Bethea-Davis’s husband–many of whom were higher-level dealers than he, she alleges–have all gotten out because their sentences were drastically lowered for turning others in. It’s a further example of guidelines and minimums favoring consistency at the expense of proportionality: Those most culpable can get sentences far lower than those on the periphery by implicating their subordinates, while low-level participants have no one else to turn in to save themselves.
Could electronic databases help inform sentencing?
After years of expansion, prison growth has slowed slightly in the last few years–in part due to an increased sensitivity to budgetary issues–and several bills to further reduce imprisonment have been introduced in the current Congress.
In October 2009, Sen. Dick Durbin (D-Ill.) introduced a measure that would do away with the powder-versus-crack cocaine sentence disparity. The National Defense Authorization Act instructed the U.S. Sentencing Commission to revisit mandatory minimum sentences. A bill to restore parolewhich would reduce incarceration rateshas gained little traction outside the Congressional Black Caucus.
As for the problem of keeping judges appraised on common sentences for convicts in similar cases, there could be a solution that wasn’t available in 1984.
The goals of sentencing guidelines “include transparency, superior information gathering and analysis, effective dialogue and clear goals and feedback.” Judges report on an electronically-filed “Statement of Reasons” form, which the sentencing commission uses to compute annual statistics, though when Booker freed judges to stray outside the guidelines for reasons other than those specified by the matrix, data collection got more complicated.
Even if judges are free to sentence individual cases as they see fit, knowledge is power, and if they are aware of what their colleagues are doing in similar cases, average sentences could ebb and flow as situations and societal attitudes change, while allowing for informed consistency across the country–just as they look to precedent for legal understanding, while occasionally making precedent themselves.
A record of sentences, and written reasons for them, comprising an “institutional memory” for the judiciary is made possible by technology, but the idea is not new. In Scotland, a law professor pointed out in 1999, “the judge asks the database to display information about cases that resemble the case at hand in all relevant ways.
But at the same time, perhaps the lessons learned by the failings of a sentencing matrix are precisely that there are some issues too subjective to be completely quantified by data.
“We forget that the computer is just a tool. It is supposed to help, not substitute for thought. It is completely indifferent to compassion. It has no moral sense. It has no sense of fairness. It can add up figures, but cant evaluate the assumptions for which the figures stand,” the Cato report said. “There is no algorithm for human judgement.”