September 28, 2004 - Dodge City Daily Globe (KS)
One-Size-Fits-All Sentences Create Judicial Muddle
By James D. Zirin
When U.S. District Judge Richard Owen of New York earlier this month sentenced Frank Quattrone, the top technology banker at Credit Suisse First Boston, to 18 months in jail for obstruction of justice, it raised a few eyebrows in the legal community. Although the federal sentencing guidelines called for a sentence of 10 to 16 months, Owen chose to "enhance" that sentence, saying he was moved to extra severity because he believed that Quattrone had lied under oath when he took the stand in his own defense.
In handing down an 18-month sentence, Owen not only departed from the clearly established guidelines, he gave prison time to Quattrone for conduct that had not been the subject of the indictment, had not been tried by a jury and had not been proved beyond a reasonable doubt.
In doing so, he waded into one of the most controversial areas of the law at the moment, an area that is the subject of a 5-4 U.S. Supreme Court decision that has left unclear just how much discretion a federal judge may exercise in a criminal case.
Until 20 years ago, it wouldn't have even been an issue. From the birth of the American republic until 1984, federal judges had broad discretion to impose criminal sentences within maximum limits prescribed by Congress. The idea was that criminal sentences would be imposed by a rational, competent federal judge who was fully informed about the offense and well acquainted with the defendant; it was expected that the judge would fashion a sentence that tempered justice with mercy in the particular case.
The trouble with this system was sentence disparity. Sentence disparity occurred when two defendants were convicted of the same crime but one received a relatively lenient sentence from one judge and the other received a relatively severe sentence from another. This can happen if, say, one judge particularly frowns on white-collar crime, believing that the privileged, such as Quattrone - who, according to prosecutors, earned $120 million in 2002 - should be dealt with severely, but another judge thinks it is street crime that requires especially tough sentencing.
So Congress tried to make sure that all defendants got the same sentence, within a specified range, for a given crime. Responding largely to the 1972 book "Criminal Sentences: Law Without Order," in which U.S. District Judge Marvin Frankel of New York denounced sentence disparity, Congress enacted "guidelines" that critics say have strengthened the hand of prosecutors and straitjacketed the options available to judges.
The guidelines require that the maximum and minimum length of potential prison terms fall into a mathematical range, or grid, determined by a consideration of the charges against the defendant and the existence of a prior criminal record. This formula produces a point score that leads to the range of sentence.
But although the guidelines may have reduced sentence disparity, they also led, in the years that followed, to harsher sentences. Before the guidelines were adopted, Quattrone probably would have received a sentence of six to eight months - instead of 18 with no prospect of parole.
And although the term "guidelines" may suggest a measure of discretion, in fact, they were more modeled on the Ten Commandments. Woe betide the judge who strays from the indicated range for reasons not set forth in the guidelines themselves. He or she will be summarily reversed by the appellate court.
Examples of prejudice sewn into the guidelines abound. An obvious one is that, although extensive studies have shown that there is no difference in the dangers posed by crack cocaine and those of powdered cocaine, Congress insisted on a guideline for crack cocaine that is 100 times greater than for the powder. Because crack is the drug of choice for the black community, the result is that a black defendant will often face a harsher sentence than the Beverly Hills movie mogul caught with the same quantity of more expensive powdered cocaine.
The regime became even more draconian in April 2003 when Congress enacted amendments further reducing the ability of judges to adjust sentences downward from guideline levels, while enhanced sentences were authorized in certain cases for matters irrelevant to the conviction, such as a defendant's bad character, indebtedness, meretricious behavior or, as in Quattrone's case, false testimony at trial.
Complicating the matter further, the U.S. Supreme Court got into the act in June. In a 5-4 decision in Blakely v. Washington, the court struck down the state of Washington's sentencing guidelines as unconstitutional because they authorized an upward departure based on extraneous factors not proved to a jury beyond a reasonable doubt - the very constitutional infirmity that appears in the Quattrone sentence.
The 9th U.S. Circuit Court of Appeals, which covers California, and one other federal appeals court have ruled that the Blakely decision applies federally, although another circuit has held that it does not.
The Bush administration has urged the Supreme Court to act swiftly to salvage the judicial shipwreck by upholding the constitutionality of the federal guidelines, and the court is scheduled to hear arguments on the issue early next month.
Justice Sandra Day O'Connor made clear her dissent from the view that the guidelines are unconstitutional. She told the 9th Circuit judicial conference that she was "disgusted" by the court's close ruling in Blakely, which she termed a "No. 10 earthquake," rolling back 20 years of penal reform.
If the majority of the Supreme Court agrees with her, the guidelines may live out the year. But, as we all know, O'Connor is but one of nine.
James D. Zirin is a lawyer in New York.