Fairness of sentencing guidelines is difficult to judge

Kim Smith

Sunday, Oct. 31, 1999 | 10 a.m.

On Monday it will be 12 years since federal judges began sentencing criminals using mathematical formulas, but whether the system is just is still up for debate.

Wide disparities in sentencing suggest that the guidelines have not entirely succeeded in overcoming geographical influences on justice.

Statistics show that federal judges in Nevada, for example, tend to be much harsher than their counterparts in Arizona and Southern California.

Pointing to these statistics, defense attorneys say the attempt to bring uniformity to sentencing has been a failure, noting that some defendants get stiffer sentences than others for the same crime. They say judges can no longer employ discretion. And they say probation officers, the ones who do the math and recommend a range of sentences, no longer advocate rehabilitation, just punishment.

Defense attorneys complain that prosecutors are allowed to manipulate the guidelines whenever it suits them, like when the system is bogged down with immigration cases. But at the same time, judges aren't allowed to deviate from either the guidelines or the mandatory sentences Congress has imposed in drug and weapons cases.

Prosecutors and probation officers, however, argue that sentences are fairer than ever and that career criminals are less likely to get off easy. The judges, they contend, still retain much of their discretion under the guidelines; they are just more accountable.

"The guidelines are a good framework and an intelligent way to discuss cases at the time of the sentencing," said First Assistant U.S. Attorney Howard Zlotnick of Las Vegas. "We're never going to eliminate all disparity, but this makes a great effort at it."

Whenever a defendant is convicted in federal court, probation officers are required to conduct an independent investigation and to submit a pre-sentence report based on that investigation. Contained within the report is a recommended range of sentences, based on the seriousness of the crime and the defendant's criminal history.

The probation officers are expected to learn every detail of the defendant's life and to include that background in their reports, which will be read by the sentencing judge and the U.S. Bureau of Prisons. They are required to document details of the crime in addition to the defendant's family background, education, medical conditions, employment, criminal record, credit rating and IRS history.

The problem, U.S. Public Defender Franny Forsman of Las Vegas said, is that many of those details, the ones that make a person who he is, have been deemed irrelevant by the U.S. Sentencing Commission.

Age, physical condition, substance abuse, mental illness, military service, education and vocational skills can be considered by the U.S. Bureau of Prisons when figuring out where to send a defendant, but they can't be used by the judge when sentencing someone, Forsman said.

"I can't go in as a lawyer anymore and say that the sentence should be one that promotes rehabilitation instead of punishment," because the justifications have effectively been taken away, Forsman said.

At sentencing hearings, the defendant's attorney and the prosecutor end up arguing about their interpretations of the guidelines and "the person gets lost," Forsman said.

Defense attorney John Fadgen agreed.

"Now we are kind of doing our sentencing by slide rule. We don't take into account, to any great extent, the individual or the circumstances," Fadgen said. "Sometimes disparity is a good thing."

The human aspect is noticeably absent when it comes to immigration cases, Forsman said. An illegal alien who has been deported and re-arrested in Las Vegas is far better off being re-arrested in San Diego.

According to statistics provided by the U.S. Sentencing Commission, defendants in border states get less time in prison than those in other states because the judges go below the sentence recommended by the probation department.

Arizona judges went below the recommended sentence in 60 percent of their cases last year, and judges in Southern California granted these so-called "downward departures" 34 percent of the time.

Judges in the District of Nevada, however, only went below the recommended sentence 10 percent of the time, and Central California judges went below the suggested guideline range just 6 percent of the time.

The average sentence in Arizona last year was 28 months and in Southern California it was 25 months. In Nevada it was 48 months and in Central California it was 52 months.

Nevada's federal judges don't go below the guideline range because the probation office never recommends they do so, Forsman complained.

That's true, said John Gonska, a supervising federal probation officer in Las Vegas.

"We don't discourage downward departures, but we haven't recommended them a lot because, unfortunately, we don't have a lot of cases that deserve them," Gonska said.

That doesn't mean that the probation department is pro-prosecution, however, Gonska said.

In fact, there have been plenty of times when his department will find out through its investigation that a defendant doesn't qualify as a career criminal even though the prosecutor might think so, Gonska said. Or they'll find out that a drug defendant actually carried a smaller amount of a drug than originally thought because the drug lab weighed the container it was in as well as the drug.

Of course, their investigations sometimes end up helping the prosecution, said Robert Musser Jr., another Las Vegas federal probation supervisor.

In one case, Musser said he realized that a bank robber was illiterate and couldn't possibly have typewritten the note he gave the clerk. He found a typewriter in the apartment of the robber's girlfriend, and the authorities ended up charging her after tests confirmed the note came from that typewriter.

"We pride ourselves on doing an independent investigation and coming up with impartial facts," Gonska said.

The probation department has to remember that its reports can be read by the department's administrative office, the Court of Appeals and the U.S. Supreme Court so they have to be accurate, Gonska said.

That is probably the reason some judges don't deviate from recommended sentencing ranges. They don't want to risk a case being overturned, Gonska said.

Lloyd George, the only U.S. district judge in the District of Nevada who agreed to be interviewed for this story, concedes there are still some problems to work out in the guideline system. Immigration cases are just one example.

"In Southern California and Arizona there are so many cases the prosecutors agree to things so the cases can get on the fast track," George said.

Zlotnick said if the deals weren't struck in those cases, the justice systems in those states would "grind to a halt."

Musser and Gonska said they have heard about districts where prosecutors are so bogged down they are willing to give defendants breaks for providing them information even when they have not.

But the District of Nevada "doesn't have the real far-out departures here that some other districts do," Gonska said.

When a deal is a little unusual, Gonska said it's usually because several defendants in a single case are agreeing to the same deal and it's a matter of saving "judicial resources" such as time.

Lucius Bunton III, a federal judge in the Western District of Texas, said the immigration situation has gotten so out of hand that district judges, magistrates and appellate judges from Southern California, Arizona, Texas and New Mexico are meeting Feb. 14 in Albuquerque to discuss it.

All of those states, Bunton said, are having to handle illegal aliens "like cattle though a chute."

Stephen McNamee, chief judge of the U.S. District of Arizona, noted that 387,000 illegal aliens were arrested along the United States/Mexico border between New Mexico and Yuma County last year.

The U.S. attorney's office is forced to make certain concessions so the system is not bogged down and that is why downward departures are recommended, McNamee said.

McNamee disagreed with defense attorneys who say judges can't use their own discretion anymore.

"The judges have a great deal of discretion under the guidelines, but they are required to document and set forth the reasoning for their decisions now," McNamee said.

Bunton, who was appointed U.S. district judge by President Jimmy Carter in 1979, said he likes the sentencing guidelines because "a man arrested for hauling 100 pounds of marijuana won't get two years while another guy gets 10 years for doing the same thing."

Bunton said he is one of those judges, however, who will take personal factors into account.

"If I have a defendant who's over 70 years old, I'm going to give him a break because he and I are not going to be here much longer anyway, and he's going to cost the taxpayers a lot of money in upkeep," Bunton said.

Bunton, however, said he doesn't like the mandatory sentences passed by Congress after the guidelines were adopted. When a defendant is convicted of a drug or weapons offense, the judge doesn't have any discretion -- he must sentence the defendant to whatever term was dictated by Congress.

For example, a defendant convicted of a crime will automatically get 60 months in prison if he's caught with a gun -- even if the gun remained in the car during the entire crime, Bunton said.

"I don't like mandatory minimums, but Congress does because then they can thump their chests and say, 'I'm strong on law enforcement,' " Bunton said.

George, too, said he dislikes mandatory sentences.

"I'd like to see something that would provide a means to allow judges greater discretion," George said. "Every case is a little different, and a lot of times the sentences seem very high."

Forsman said she isn't very hopeful that someone will figure out a way to fix both the guideline system and the mandatory sentence laws.

"White-collar criminals who steal millions of dollars will never do as much time as an inner-city kid who sells a small amount of crack cocaine or the people who re-enter the country illegally," Forsman said.

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