Sentences still based on unreliable allegations  

Washington, DC (2006, exact date unknown) -- Federal judges continue to impose the most severe sentences ever imposed. It is no longer drug kingpins who are being sentenced to 10 and 20 years in prison or more. Persons convicted of fraud and other nonviolent offenses are also being imprisoned for terms once reserved for the most violent offenders. Whereas once more than half of federal defendants might expect to receive a sentence of probation, today nearly all can expect to be sent to prison. The majority of federal cases continue to be sentenced in conformance with the “advisory” federal sentencing guidelines, a report released by the U.S. Sentencing Commission on March 14 says.

After the Supreme Court decided United States v. Booker,¹ many federal criminal justice experts predicted that federal sentencing practices would not be significantly affected, despite federal judges’ greater discretionary power to sentence outside the guidelines range. In light of these findings, the real question is whether federal judges are adhering to the statutory requirement to impose a sentence “sufficient, but not greater than necessary” after considering multiple factors or whether they are imposing sentences that are harsher than necessary to provide just punishment, afford adequate deterrence, protect the public and provide the defendant with any needed educational and vocational training and other treatment.

“On the whole, federal sentences have remained the same or are somewhat more severe,” said NACDL First Vice President Carmen Hernandez, a federal sentencing expert. “Congress need not be concerned that there is an epidemic of leniency in the federal courts. What should concern Congress is the vast sums of our tax dollars that are being spent to imprison nonviolent offenders by the numbers without regard to ‘the nature and circumstances of the offense and the history and characteristics of the defendant.’ It should be of grave concern that many of those who are imprisoned are drug addicted or suffering from learning disabilities and mental health problems that went untreated and that such lengthy prison terms are destroying families and forcing generations of children to grow up without fathers, and increasingly, without mothers in cases where treatment and shorter prison terms or alternatives to prison would serve society much better. Congress should also be questioning why our federal prisons are filled with a disproportionate number of blacks, Latinos and young men from poor families. In terms of protecting society, Congress’ real concern ought also to be that every year we are releasing tens of thousands of persons back into the community without any real treatment or job training, and without their families, who have long moved on.”

As far as the aftermath of Booker, the real problem in the federal system has yet to be addressed: “Sentences continue to be based on hearsay and other unreliable or unverifiable information that was never presented to a jury.”

In light of a March 16 hearing on federal sentencing before the U.S. House Judiciary Committee, a special word needs to be said about sexual exploitation of children and the 2003 PROTECT Act². Cases involving sexual abuse of a minor, an adult or abusive sexual contact, including statutory rape, accounted for 257 cases out of 65,368 federal convictions, which is less than 0.4 percent of all federal convictions during the 12 months following the Booker decision³ In our system, the states prosecute most such offenses. In any event, sentences for federal crimes against children have gone up, not down, since Booker was decided, and sentences above the guidelines range have tripled for Abusive Sexual Contact and Exploitation of a Minor (see Table 16 of the report). One hundred percent of defendants convicted of Exploitation of a Minor were sentenced to prison after Booker, the report notes, the same percentage as before.⁴ An exception was a post-Booker increase in below guidelines sentences for statutory rape, but there still remain fewer cases being sentenced below the guidelines than before Congress passed the PROTECT Act.

The proposal by the Department of Justice asking Congress to enact “topless” guidelines, which would allow judges to increase sentences above, but not below, the guidelines is, to quote Judge Paul G. Cassell, “risky.” The likelihood that such a system which appears an “end run around the Supreme Court’s constitutional pronouncements that juries have an important role to play in criminal sentencings” is unconstitutional.⁵  

Notes  

1. 543 U.S. 220 (2005).
2. See Press Release: Sensenbrenner Expresses Concern Over Federal Sentencing Practices Detailed in New Report, Mar. 14, 2006, U.S. House of Representatives Committee on the Judiciary.
3. Criminal Sexual Abuse of a Minor Under Age 16 (130 cases); Abusive Sexual Contact (30 cases, including adult victims); Sexual Exploitation of a Minor (97 cases). Source: United States Sentencing Commission, Report on the Impact of United States v. Booker on Federal Sentencing (March 2006), Table 16, p.119.
4. Ibid. The fact is that since most federal child sex crimes arise on federal lands, Native American defendants represent a disproportionately high percentage of the 303 convictions and sentences at issue here. Cases involving the possession, distribution or production of sexually explicit materials depicting minors accounted for another 1021 prosecutions or 1.5 percent of all federal convictions during this same period. See Appendix E-11 of the Report.
5. Statement of Judge Paul G. Cassell, Chairman, Committee on Criminal Law of the Judicial Conference of the United States, Mar. 16, 2006, p. 17.

To Link to the Judiciary SubCommitee Hearing Page, Click Here.

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NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.