A Really Good Day(22)

In the federal system, sentences are not left to the discretion of judges. They are calculated in accordance with the Federal Sentencing Guidelines, promulgated by the United States Sentencing Commission. Before the Sentencing Guidelines, a defendant’s sentence depended in large part on the judge to whom his case was assigned. End up in the court of a judge with a capacity for empathy and you might walk away with probation. Be assigned a hard-ass and you might spend the rest of your life in jail. And guess whom the hard-asses were most likely to punish? Race and class bias were rampant under that system. By removing judicial discretion, the Sentencing Guidelines and the mandatory minimum sentences for drug crimes passed by Congress were intended to rid the system of sentencing disparities. Instead of a judge’s individual assessment of a case, a crime, or a defendant, the Sentencing Guidelines and mandatory minimums require that charges and sentences be determined primarily by a single factor: the quantity of drugs bought or sold.

Back when I was a young federal defender, I carried with me a thick book, the Federal Sentencing Guidelines Manual, in which every federal crime was assigned a point value. (It was around six hundred pages and weighed about as much as a brick of cocaine with a street value of twenty-seven grand.) The point value for drug crimes was determined by consulting the “Drug Quantity Table.” The box of methamphetamine carried by my client weighed at least three kilograms, which carried a “Base Offense Level” of 36. The back half of the book contained adjustments for things like “Role in the Offense” and “Acceptance of Responsibility” (pleading guilty). The chapter on criminal history added points for every prior offense. Among the first things I did with every client was to add up the points of his crime and his criminal history, and then flip to the back page of the book, to a table that calculated exactly what sentence he could expect to receive. My client in the methamphetamine case had no criminal history at all, so his Base Offense Level was not adjusted higher for that. Still, because of the sheer quantity of the drugs in the box he had carried, he was subject to a sentence of between 188 and 235 months.

This systematized approach to sentencing is certainly rational. There should be consistency in sentencing; a defendant’s future should not depend on how the judicial assignment wheel is spun.*3 However, the idea that nothing about my client’s personal situation could make an impact on his sentence was infuriating. Here was a man who was of such limited intelligence that years ago he would have been called mentally retarded. He was set up by a wily, sophisticated informant who had purposely packed the box with enough drugs to trigger the massive penalty. What justice would be served by sentencing my client, who was a danger to no one other than himself, to more than fifteen years in jail?

Moreover, the Sentencing Guidelines and mandatory minimums have failed to accomplish their stated goals. True, they removed judicial discretion from the federal system, but there has been no reduction in bias. All that’s happened is that the bias of jurists with sufficient experience and, at least theoretically, wisdom to be appointed to the bench, has been replaced with that of prosecutors, who now determine, via their charging documents, what sentence a defendant faces. We have saved the system from the perils of the personalities of individuals appointed by the president and confirmed by the U.S. Senate and turned it over to the personalities of ambitious young lawyers, many of them right out of law school, and many of them perfectly incubated examples of wealth and privilege.

Things have improved somewhat since I was in practice. In 2005, the Supreme Court, in a case called United States v. Booker, ruled that the guidelines were not mandatory but advisory, and that judges can depart from the calculations if they so choose, though these departures still have to be “reasonable.” The Fair Sentencing Act of 2010 made changes to the mandatory minimum laws that might have allowed the judge in my client’s case to consider factors that could have mitigated his sentence, though the bulk of that law applies to crack cocaine, not methamphetamine. But back when I was taking my client’s case to trial, the judge had no discretion at all. Her sole job after the determination of guilt or innocence was to do some arithmetic and apply the sentence required by the answer.

We had had an excellent entrapment defense. I had assembled a mountain of evidence against the informant, a vicious and loathsome man with a history of entrapping first-time offenders, none of whom had ever committed crimes before he encouraged them to do so. My client had no criminal record, and was found by the government’s own expert witness to have an IQ of approximately 85, significantly below average. I was confident that I was going to win, so confident that when the assistant U.S. attorney called me the afternoon before trial, and asked me what I would have settled the case for had he initially offered a plea different from the Sentencing Guidelines range, I said, “Nothing more than two phone counts.”

A phone count is courthouse jargon for the offense of using a communications device in the commission of a crime. The maximum statutory penalty is four years. My client spoke to the informant a number of times over the phone. Those calls were recorded. If he were charged with communication crimes rather than with drug distribution, though the Sentencing Guidelines sentence would still be determined by the quantity of the drugs at issue in the case, the sentence would be capped at four years for each phone count. If my client pled guilty to those two counts, the judge would have no choice but to sentence him to a maximum of eight years instead of the fifteen to nearly twenty he was looking at.