Latest Drug War News

GoodShop: You Shop...We Give!

Shop online at and a percentage of each purchase will be donated to our cause! More than 600 top stores are participating!

The Internet Our Website

Global and National Events Calendar

Bottoms Up: Guide to Grassroots Activism

Prisons and Poisons

November Coalition Projects

Get on the Soapbox! with Soap for Change

November Coalition: We Have Issues!

November Coalition Local Scenes

November Coalition Multimedia Archive

The Razor Wire
Bring Back Federal Parole!
November Coalition: Our House

Stories from Behind The WALL

November Coalition: Nora's Blog

March 20, 2005 - The Daily Progress (VA)

Decision Rocked Judiciary, Renewed Debate On Drug War

By Liesel Nowak, Daily Progress staff writer

Return to
Blakely News Archive

In sending Daniel E. Comarovschi to federal prison for two years for growing and selling pot from his Charlottesville home, a frustrated Judge James H. Michael Jr. denounced the federal guidelines that prevented him from giving the nurse a lighter sentence.

"If this were a preguidelines sentence, it would have never carried with it what this guideline sentence does carry," Michael said in September. "This is a case, as the court sees it, considering all the background, that cries out for a period of probation."

In January, everything changed.

Those in legal circles refer to it simply as "Booker." In its Jan. 12 rulings in United States v. Booker, the U.S. Supreme Court relegated once-mandatory sentencing to advisory status, restoring discretion in sentencing to judges such as Michael for the first time in 17 years.

The landmark decision has rocked the federal judiciary - known for its harsh mandatory penalties, particularly in drug crimes - and has reignited the debate over the federal government's costly prosecution of the war on drugs.

Now, judges, defense lawyers and prosecutors must decipher the implication Booker has for the tens of thousands of criminal cases across the country, and wait to see what move the majority conservative Congress will make in response. Many see it as one of the most politically charged judicial decisions lawmakers have faced in years.

Congress enacted the guidelines - the legal framework of rules for sentencing convicted federal offenders - in 1987 as a response to what many saw as unequal sentences for the same crime in different parts of the country.

Alan Silber, who is a member of the board of directors of the National Association of Criminal Defense Lawyers, an advocate of drug-law reform and Comarovschi's lawyer, countered that uniformity is "actually unfair."

"The fundamental fallacy of the rhetoric being used is the notion that the same sentence for the same crime is fair," he said.

One courthouse source, prohibited from speaking publicly about the Booker decision, opined that with sentencing guidelines, the justice system ensures equal treatment under the law of wealthy criminals and the poorest defendants.

"Without guidelines, you could have [Enron finance chief] Andrew Fastow pleading guilty and getting 10 years, or Martha Stewart not having gone to prison at all," the source said. "Basically, you'd see rich people not having to go to jail."

While mandatory guidelines have achieved uniformity, they have been criticized because of their penalties, which many consider overly harsh. Booker now allows appeals courts to explore the "reasonableness" in guidelines sentences, according to University of Virginia School of Law professor Stephen F. Smith.

"As such, sentencing judges should now be free to impose sentences other than those that would've been required under the guidelines, and appellate courts should uphold those sentences, even if lower than the guidelines sentence, as long as they're not 'unreasonable,'" Smith said. "If that happens, then Booker will have solved one of the key problems with the federal sentencing guidelines: their excessive rigidity and severity."

Though the sentences are harsh in federal court as compared with those in state courts, the federal government has helped solve many violent crimes, according to Charlottesville Commonwealth's Attorney Dave Chapman.

"Many people disagree with how severe the sentences are in federal court, but there is no question in my mind that the community has benefited," Chapman said. "Federal court has really worked well for us, but it comes at a very high price that we should never forget."

UVa's Smith predicted that without the leverage of tough, mandatory sentencing guidelines, federal prosecutors must cut suspects better deals in plea agreements, which is how nearly 95 percent of federal criminal cases conclude.

Some have predicted fewer plea agreements in a post-Booker world, amid other dire repercussions. In a New York Sun article, Assistant Attorney General Christopher Wray anticipated "wildly inconsistent" sentencing across the country.

Despite such pessimistic predictions, judges in the Western District of Virginia, which includes the Charlottesville area, are sentencing within or below the sentencing guidelines, according to local courthouse observers.

From his office off of the Downtown Mall, defense lawyer J. Lloyd Snook III argued that judges should be ultimately responsible for punishment, not prosecutors, who wielded much more power before the Booker decision. Judges will again have to develop their sentencing philosophies.

"They're getting paid 150,000 bucks a year to make tough decisions," Snook said of federal jurists.

Judge's Discretion

In the dense federal guidelines manual, hundreds of pages of rules and a complex table of numbers are used to determine the sentencing range based on criminal history.

Since the Booker ruling, judges in federal court have used the guidelines as suggestion, not dictation. One local lawyer said that the recent changes would rightfully make sentences a question of people's lives, not of arithmetic.

Though the Supreme Court has directed judges to take the guidelines into consideration when imposing sentences, judges can, and have, strayed from those once-mandated terms of imprisonment.

In sentencing a man convicted in a drug conspiracy in Abingdon this month, Judge James P. Jones, chief judge for the Western District, explained that he chose to impose a sentence that departed downward from sentencing guidelines because he disagreed with the guidelines' characterization of the defendant as a "career offender."

Lewis Gray Naylor Jr. had nine breaking and entering convictions on his record before he celebrated his 17th birthday. Judge Jones said Naylor's young age when he committed the break-ins undercuts the need to rely on those convictions to lengthen his sentence.

"Juveniles have an underdeveloped sense of responsibility, are more vulnerable to negative influences of peer pressure and their character is not as well formed as an adult's," Jones wrote.

Watching and Waiting

In the days that followed the Booker decision, lawyers around town carried around thick printouts of the ruling and read carefully through its analysis during breaks from court.

In subsequent weeks, those attorneys have shared strategies and information about how judges around the country are handling not only new sentencings, but cases on appeal because of Booker. Amid online discussions and e-mails, the lawyers continue to watch and wait.

Meanwhile, federal prosecutors, with direction from the Justice Department, carry on with their immense workload. So what is the word from Washington?

"It's been pretty straightforward. The court recognizes that the guidelines are advisory," said John Brownlee, U.S. attorney for the Western District of Virginia. "We're kind of carrying on as directed. At this point we just continue to do what we're doing.

"So far, from what I can tell, the sentences, generally speaking, have been in the guidelines. Some have gone outside. We're blessed with very strong judges in this district, who, by and large, are law-and-order judges."Brownlee declined to reveal his own take on the Booker decision.

"My responsibility is to follow the law and to make sure the lawyers in my office are up to speed and understand the law no matter what Congress or the courts will do," he said. "The feelings of one lawyer aren't relevant."

Working to end drug war injustice

Meet the People Behind The U.S. Sentencing Guidelines

Questions or problems? Contact