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March 22, 2005 - The Daily Progress (VA)

Politics Of Punishment

Charlottesville's Commonwealth's Attorney Puts It Simply: Federal Court Is A Different World

By Liesel Nowak

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Blakely News Archive

Drug crimes that Dave Chapman prosecutes do not often involve major criminal enterprises or result in life sentences. On most Thursdays, the lawyer works with probation officers and drug counselors to make sure addicts get treatment and never return to court.

And after Chapman wins a case, a judge in state court can choose how to apply sentencing guidelines when arriving at a punishment. The judge can be lenient or harsh, as the case warrants.

With its January decision in United States v. Booker, the U.S. Supreme Court ruled that guidelines used in sentencing federal criminals are advisory, rather than mandatory. For the first time in 18 years, federal judges have that same discretion in sentencing that Virginia's state judges have enjoyed for years.

Chapman said he does not support mandatory sentencing guidelines. Advisory guidelines, according to Chapman, create "a good system from the standpoint of it being important to have a baseline from which to think about the characteristics of a specific case and determine if it should be sentenced more severely or less so."

Virginia's Guidelines

Sentencing guidelines in Virginia were enacted in 1995 in the wake of Gov. George Allen's "truth in sentencing" initiative, which abolished parole and aimed to ensure that violent felons serve the full length of their prison terms.

According to the Virginia Criminal Sentencing Commission's 2004 annual report, judges in the 16th Judicial Circuit comply with sentencing guidelines in 81 percent of cases, the same as the average compliance rate among all judges in Virginia.

"The impressive compliance rate surpasses that found in many other places with mandatory guidelines systems," the report states. "The ongoing success of voluntary guidelines in Virginia reflects the confidence in the judiciary in these benchmarks."

After a conviction, judges receive a pre-sentencing report on a defendant's criminal background and a guideline score that recommends a low-, mid- and high-point sentence. The judge then chooses how to apply guideline recommendations to the actual punishment.

Advisory Opinions

"The fact is, advisory guidelines work," local defense lawyer J. Lloyd Snook III says.

In the 25 years he's practiced law in both federal and state courts, Snook said he has regularly seen federal sentences that are out of synch with the actual crimes committed. He joins critics of mandatory guidelines who have said that the practice strips judges of their discretion in sentencing.

Critics also have said state guidelines put more emphasis on criminal history than the current offense, while federal guidelines do the opposite.

They have complained that federal guidelines are not reviewed as often as state guidelines and argued that mandatory guidelines gave already-powerful U.S. attorneys even more authority.

Though he is hopeful that the Booker decision will dilute prosecutorial power in federal cases, Charlottesville lawyer Steven D. Rosenfield continues to protest that power by refusing to represent clients who agree to cooperate with federal prosecutors. If appointed to such a case, he finds another lawyer to represent his client.

Federal sentencing guidelines were established mainly as a way to eliminate sentencing disparity in different parts of the country. Some have said, however, that the guidelines were sold to the public in the 1980s on the false bill of deterrence.

"I think politicians regularly talk about deterrence," Rosenfield said. "But in reality, very few criminals, including white collar criminals, rarely look at the guidelines or talk to a lawyer before deciding to steal from someone."

Lawyer Alan Silber said defendants who become government witnesses in exchange for less prison time have "killed the notion of deterrence," and that "the informer world is the scandal of the criminal justice center."

Mandatory Minimums

Both state and federal laws requiring mandatory sentences have drawn the ire of critics. The decision in United States v. Booker did not address those mandatory minimums. For instance, a person convicted of possessing 5 grams of crack must serve at least five years in prison, according to federal law.

"There are times when mandatory sentences are appropriate to express and enforce a particular approach in certain circumstances," city prosecutor Chapman said. In Virginia, those laws address crimes such as those that involve the use of a firearm.

Even so, Chapman said mandatory sentences can be frustrating.

The tough-on-crime mentality, whether it relates to drug offenses or other crimes, does not seem to be divided on partisan lines.

In Virginia, lawmakers on both side of the aisle have shown support for statewide drug court programs that allow non-violent drug offenders to get clean with support from prosecutors and judges as well as addiction and employment counselors.

"It is a mystery" why the federal government is so much tougher in sentencing than even a relatively conservative state such as Virginia, local lawyer Fred Heblich said. "The federal justice system is not equipped to handle a public health problem," he said. "It's equipped to punish."

Politics Of Punishment

While both Democrats and Republicans have supported harsh mandatory sentences, in recent years fiscal conservatives have questioned the billions of federal dollars that have been spent in the war on drugs. In fact, both Republican candidates for Virginia attorney general support the idea of advisory guidelines.

From 1980-1981, Steve Baril clerked for U.S. District Judge D. Dortch Warriner, an outspoken critic of unfettered discretion of federal judges.

Baril, however, opposes the pre-Booker mandatory guidelines that restricted judicial options in sentencing.

"Philosophically, I believe the Supreme Court decision [in Booker] was probably consistent with the notion that they ought to be guidelines," Baril said. "My preference is that they be guidelines, not mandates."

Del. Robert F. McDonnell, R-Virginia Beach, is a former state prosecutor who worked on Gov. Allen's 1994 commission to legislate "truth in sentencing."

"I'm certainly a fan of the Virginia system," McDonnell said. "We decided it was important to have some discretion for judges. We picked people we thought were outstanding jurists to be on the bench and understand factors in cases that give judges the ability to sentence above and below the guidelines."

University of Virginia School of Law professor Stephen F. Smith said Congress should take a cue from cash-strapped state legislatures that have begun rethinking Draconian penal policies, but there is a two-fold problem in the federal system.

First, Smith said, state prosecutors have far less flexibility over their criminal dockets, whereas federal law-enforcement resources can be used largely as prosecutors see fit.

"The public expects state prosecutors to prosecute murders, rapes, burglaries and so forth, and so there are a lot of cases that elected state prosecutors simply must prosecute," Smith said. "This is far less true of federal prosecutors."

Further, Smith said, the federal share of law enforcement is tiny compared with the states' share, with roughly 80,000 criminal prosecutions annually in federal courts versus 15 million in the 50 states.

Some say an increasingly conservative Congress could have an extreme reaction to Booker in the form of rewriting the criminal code with specific, mandatory prison terms for every offense or, in an effort to make mandatory guidelines constitutional, have juries consider factors in sentencing not currently available to them, such as a defendant's previous criminal convictions.

Many courthouse insiders say they want lawmakers to watch and wait, just like they are doing.

"I don't know what Congress is going to do," Heblich said. "My own feeling is that I would like to see them do nothing for the time being and give the system as it is now a chance to operate."

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