Monday, September 11, 2006

Trying To Make Sense Out Of Federal Court Sentencing

Former County Commissioner Michael Hooks and former State Senator and county mayor’s aide Roscoe Dixon have now entered the Byzantine world of federal sentencing, and the different points of entry into that system – the former by guilty plea and the latter by jury conviction – will now become a major factor in their ultimate sentences.

That’s because, despite public perception to the contrary, a defendant exercising his right to trial actually pays a price for doing so in federal court. Under the federal sentencing guidelines, which are technically advisory as a result of a January, 2005, U.S. Supreme Court ruling but still largely used by local judges, a defendant gets a reduction in his sentence for “acceptance of responsibility.”

In entering his guilty plea, Mr. Hooks did this to perfection, and while his comments were sincere and unvarnished, best of all for him is the fact that they reduced his sentence by about one year.


Meanwhile, Mr. Dixon, by going to trial, is seen under the guidelines as not accepting responsibility, and so he forfeits the benefits that he would have received in accepting responsibility.

But such is the parallel universe where the federal sentencing guidelines have existed since being written about 22 years ago, ostensibly to bring some consistency to the federal courts, but more to the point, transformed federal judges into accountants whose roles were to validate algebraic formulas calculated by probation officers that determine the sentence.

In fact, the sentencing guidelines have been said to approach IRS statutes in their complexity. The summary document for the guidelines is a mere 640 pages, and the complete works of the Federal Sentencing Commission could pass for a small library.

Risk Assessment

In keeping with the statistical tone of the sentencing in federal court, making a decision about whether to go to trial or not is largely an exercise in risk assessment. Going in, every one has to understand that the chance of an acquittal is infinitesimal. Pitted against the massive resources of the federal government, the number of people acquitted out of 10,000 equals a grand total of 150.

Faced with the punitive nature of going to trial and losing the points under the formula for accepting responsibility and pleading guilty before the government has to prepare its case, only 6 percent of criminal cases brought by the federal government go to trial. Then again, by forgoing the trial, a defendant can also decide to cooperate with investigators and under section 5K1 of the guidelines get consideration for “substantial assistance to authorities,” as about 19,000 people do each year.

Two other realities serve as incentives for guilty pleas. There’s no such thing as probation for most crimes in the federal system, and unlike state sentences, 10 years isn’t actually about 5 years in prison. Instead, in the federal system, 10 years is about 8 and a half years. In the federal system, each person gets 54 days a year taken off the sentence if he maintains good behavior.

Using The Guidelines

In the aftermath of last year’s Supreme Court ruling on the sentencing guidelines (rule of thumb: prosecutors loved the guidelines, the judges hated them), the guidelines became discretionary, meaning that judges may consider them but are not required to adhere to their standards in setting the sentences. That said, federal judges almost invariably use the guidelines in sentencing defendants, and that’s especially true in Memphis where most judges are Republican appointees. Only U.S. District Court Judge Bernice Donald has shown much flexibility to factoring in her own judgment and experience.

Prior even to the Supreme Court ruling, Judge Donald had resisted the rigidity that former Attorney General John Ashcroft had sought in applying the guidelines. Angering even staunchly conservative judges, Ashcroft directed U.S. attorneys to report to the Justice Department any judge who handed out a sentence that was less than called for in the guidelines. It’s almost a certainty that Judge Donald’s name was on that list.

The guidelines were set up in a fit of conservative activism during the Reagan presidency, and a logical argument can be made (especially by the Cato Institute) that in passing the Federal Sentencing Reform Act, the U.S. Congress warped the balance of powers that is supposed to exist between legislative and judicial branches.

Unintended Consequences

It was a time when the intent was to tie the hands of federal judges in imposing sentences, but in the end, it transformed the entire federal court process. It removed from the sentencing equation issues any discretion by the judge for issues such as age, education, mental and emotional condition, health, drug dependence, lack of guidance as a youth, community ties, military service and charitable works.

Once these factors could not be considered, the balance of power swung even more strongly to the prosecution, because the guidelines left only cooperation in a federal investigation as the primary way to reduce a sentence in a substantial way. This led not only to massive plea bargaining, but also, the practice of fact bargaining, because of the wide discretion given in the guidelines to interpreting “relevant conduct.” This section particularly came under stinging rebuke by the Supreme Court ruling.

For example, the FBI could arrest and charge someone with selling cocaine. At the time of the arrest, investigators seized a book of names. While the person was only charged with the single offense, when it came time for sentencing, the equation would include “relevant conduct,” which meant that prosecutors could argue that there were 80 names in the book and if you multiplied each name by the amount of crack confiscated at arrest, it would produce a much larger amount of drugs being distributed, and it was this larger amount that would be the determinant for setting the sentence. That’s how the courts have people serving 15-years in federal prison for selling marijuana.

Examples Only

But back to the example of the sentencing guidelines using the cases of Mr. Hooks and Mr. Dixon as examples. Right now, the U.S. Probation Office is engaged in an in-depth report on each of them. It includes personal history, medical history, state of mind, the level of support from family, bank accounts and liabilities and assets. The report will summarize the details of the crime, tending to rely on the FBI’s opinions of the facts, but if there’s a major disagreement, the question can be presented to the judge.

To arrive at the “guideline range from the sentencing table,” the probation officer first checks the guidelines to determine the offense level. For example, if the charge is receiving a bribe, the offense level is 14. If the offense involved more than one bribe of extortion, 2 points are added. If the offense involved the abuse of office by an elected official, it could add 4 more points.

Then, points will be added based on the amount of money involved in each offense. For the $9,500 involved in Mr. Dixon’s indictment, 2 points will be added. For Mr. Hooks’s $24,200, 4 points will be added.

The Value Of Accepting Responsibility

Here’s where Mr. Hooks guilty plea results in points being deducted. By pleading guilty, accepting responsibility and permitting the government from having to prepare for trial, he’ll have three points subtracted from his total.

Here’s our disclaimer. The sentencing guidelines are so complicated that most criminal lawyers don’t even bother to learn their intricacies. Instead, a couple of Memphis lawyers are recognized as experts in these calculations, and they are hired to compute the sentences. Even then, the projections are not perfect, because the probation office can interpret different facts and factors in different ways. In other words, this exercise is demonstrative only and probably have no relationship to what will finally happen in these cases.

With that proviso, here’s how the probation officer will get to the final sentence guideline. The points will be added (for purposes of this exercise, we’ve presumed there are no criminal histories, obstructions of justice or assistance to the investigation), and the probation officer will then turn to the sentencing table, which is a grid of columns matching points to a sentence.

The Projections

For the purposes of this exercise, and these are not predictions, Mr. Dixon’s points would total 22, which computes to a 41-51 month sentence; Mr. Hooks’s points total to 19, which equates to a sentence of 30-37 months, the lower amount largely produced by the guilty plea.

By way of reference, former Hamilton County Commissioner William Cotton went to trial and was sentenced to 3 years and fined $9,500. Chris Newton, meanwhile, entered a guilty plea and was sentenced to one year.

A prominent local defense attorney has referred to the federal sentencing guidelines as the judicial equivalent of Alice in the Looking Glass. Certainly nothing symbolizes this as much as the federal sentencing guidelines, as the defendants in the Tennessee Waltz will come to understand.

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