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Petition title

The US Sentencing Commission's Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform warrants study. You can view the Executive Summary and download the report here.

History of Guideline Sentencing and a Case for Reform

In the mid eighties, Congress dramatically changed the federal sentencing system. The changes followed widespread discontent with the old sentencing system, and they ultimately led to the passage of the Federal Sentencing Guidelines in 1987.

In the old system, judges determined criminal sentences. They considered the facts of each particular case -- including the circumstances of the offense and the life history of the offender -- and chose a sentence they considered fair.

The only requirement was that the sentence be within a statutory range, and the ranges were often extremely broad. Statutes typically authorized sentences like "not more than five years," "not more than twenty years," or in some cases, "any term of years or life." Judges had authority to impose any sentence within the statutory range.

The imposition of the sentence was only the beginning. Once the person was in prison, the parole board determined the actual date of release. The parole board considered circumstances like the person's conduct in prison and efforts towards rehabilitation, and it released people to parole supervision when it thought they were ready -- often after just half the sentence. If the person misbehaved after release, parole could be revoked and the person could be incarcerated for the remainder of the sentence.

In the 1970s this practice fell into disfavor because it permitted too much disparity between cases. Different judges sentenced similar offenders differently, and parole boards became too powerful. If two identical offenders were each convicted of a crime carrying a sentence of "not more than twenty years," one might spend three years in custody and the other might spend fifteen. Evidence accumulated that the system led to arbitrary decision making and sometimes discrimination against poor people and minorities.

In 1984 Congress addressed these concerns by creating the United States Sentencing Commission and ordering the promulgation of the Federal Sentencing Guidelines. The new system sharply curtailed parole and confined judicially imposed sentences into narrow ranges. Congress enacted the Guidelines into law in 1987, and in 1989 the Supreme Court held that the effort was constitutional. [See Mistretta v. U.S.]

Guidelines use standardized worksheets to calculate the sentence. In principle, the process is a lot like calculating income taxes with a federal 1040 form. The worksheet is complex and intricate, but in theory it guides everybody to the same conclusions.

Guidelines operate by assigning an offense level to every crime -- low offense levels for minor crimes and high levels for major crimes. At the same time, the guidelines direct the calculation of the criminal history of each defendant. A person with a clean record starts with zero criminal history points, and points are added for every subsequent offense.

The task of the judge is to look up on a grid the spot where the offense level intersects the criminal history. The grid assigns light sentences to people with low criminal histories who commit lesser crimes, and stiff sentences to people with long criminal histories who commit severe crimes.

A Case for Reform

The Sentencing Guidelines, which promised to bring order and rationality to sentencing, have instead brought inconsistency and disproportionality. Serious crimes sometimes lead to minor sentences, while minor crimes sometimes lead to many years in prison. Judges have lost the ability to tailor the sentence to fit the circumstances of each individual case. [1] One size does not fit all.

The Guidelines are one cause of the dramatic growth in the federal justice system. The number of federal prisoners has increased nearly seven fold since 1980, rising from 24,000 in 1980 to 106,000 in 1996, and to over 170,000 in 2003.[2] The surge has required the construction of more than 65 new federal prisons and budgetary increases that stagger the imagination. [3]

Contrary to popular belief, few people sent to federal prison committed violent crimes like murder, robbery and rape. 77% of the admissions in 1994 were for non-violent crimes. Many of these people are serving disproportionately long sentences, or they could safely be sentenced to non-custodial alternatives. In 1992, the federal system held 12,727 non-violent, low-level drug offenderswith zero criminal history -- for an average time served of nearly six years.[4]

It costs American taxpayers approximately $22,000 to keep each of these men and women locked up for one year, the full tax burden of roughly four American families.

The budget arithmetic is astonishing. Taxpayers spent approximately $1.7 billion incarcerating this single category of offender -- people who are non-violent by definition. That money could be better spent in other ways; for example, $700 million could provide drug treatment and community supervision, and the remaining $1 billion could be returned to the taxpayers as savings.

It is no wonder that Americans are frustrated by the ineffectiveness of their criminal justice system. The system costs too much, fails to prioritize and fails to keep people safe. While the government plows billions of dollars into prisons, it cuts students loans, underfunds libraries, increases fees at national parks, eliminates opportunity creating programs, and leaves the highways to decay. Even fundamental programs like Medicare and Social Security risk budget cuts while expenditures in the justice system go unquestioned.

If the expenditures bought safety they might be justified -- but they don't. A 1992 survey of federal judges found that judges believe only one in four sentences they impose under the guidelines is appropriate. Many prominent senior judges are so distressed they have exercised their option not to hear criminal cases because they do not wish to participate in an unjust scheme. The most common complaints are the mismatch between the punishment and the crime, and the general irrationality of the system.

One problem in the federal system is the complexity of the grid. The federal grid contains 258 boxes and the calculations needed to determine the proper box occupy a 393 page rule book with 539 pages of appendices. Every calculation opens the possibility of arithmetic error or interpretive disagreement, so the final product contains disparities that may be as bad as those the Guidelines were designed to resolve.

A system intended to streamline and simplify the sentencing process has instead created a far more complex system that has clogged the courts with appeals over Guidelines' applications. Furthermore, the federal Guidelines are not simply guidelines, as the name suggests: they are mandatory. Judges are required to follow them, no matter how inappropriate the result. The loss of flexibility makes it impossible to tailor the punishment to fit the crime and the criminal.

Another particularly urgent problem is the shift of sentencing power to the prosecutor's office. Prior to the Guidelines, prosecutors charged people with crimes, and then judges sentenced people for those crimes. The two tier system created checks and balances that left neither party with too much power. Under the Guidelines, however, the charging decision becomes for all practical purposes the sentencing decision.

A prosecutor who opts to charge a person with one crime rather than another determines the base offense level and thus for all practical purposes the sentence. Because there are thousands of offenses in the federal criminal code and because individual crimes often violate more than one section of the code, the prosecutor's decision about which section to charge under, or how many counts to bring, effectively determines the sentence. The concentration of power into a single party invites distortion in the system.

Another reason power shifts to the prosecutor is that only the prosecutor can reward suspects for providing information on other suspects. The judge cannot initiate the process and has only the smallest oversight. Unfortunately, many crime kingpins have substantial information to trade for lesser charges; whereas the low level participants have little information to trade. That is one reason our prisons are filled with low grade drug offenders while kingpins sometimes get off easy.

The Coalition for Federal Sentencing Reform (an organization founded in 1996) determined that they would examine a variety of issues relating to the operation of the Federal Sentencing Guidelines, and seek to make recommendations for reform. The Coalition expects to examine whether the Guidelines:

  • are excessively complex and lead to excessive litigation
  • should be mandatory or advisory
  • should incorporate conduct that was acquitted after trial or could have been charged at trial, but was not
  • have reduced disparity and successfully balanced the goals of uniformity and proportionality
  • have disrupted the balance of power between the courts and the prosecution
  • should be expanded to include non-custodial sentences
  • should grant judges added flexibility to take into account human elements such as family responsibility, employment history, or physical and mental condition.

In addition, the Coalition has examined larger issues relating to the role of the United States Sentencing Commission and the scope of the Guidelines. These issues have included:

  • The relationship between the Guidelines and mandatory minimums
  • Whether the Guidelines structure should be constrained by the capacity of the federal Bureau of Prisons
  • How the widespread dissatisfaction of federal judges can be developed into recommendations for reform
  • Whether the proceedings and deliberations of the Sentencing Commission should be opened to increased public scrutiny and input
  • Whether good time credit should be increased for certain classifications of prisoners, such as first time non-violent offenders
  • Whether the Sentencing Commission is carrying out the statutory mandate described in the legislation that created it

[1]United States v. Eiselt, 988 F.2d 677 (7th Cir. 1993).
[2]Bureau of Justice Statistics Bulletin: November 2004, NCJ 205335; Prisoners in 2003
[3]40 federal prisons had been built in 1995; 10 more were under construction 1996. Bureau of Justice Statistics: Sourcebook of Criminal Justice Statistics 1995 (1996): table 1.98, page 101. Federal law enforcement totaled $4.1 billion in 1979 and $17.4 billion in 1992. Bureau of Justice Statistics: Sourcebook of Criminal Justice Statistics 1995 (1996): table 1.1, page 2; Bureau of Justice Statistics: Justice Expenditures and Employment, 1992. Official 1996 data are not yet available.
[4]U.S. Department of Justice: An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories (February 1994).

Adapted from The Case for Reform; Coalition For Federal Sentencing Reform (Revised February 1997)

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Principle Fairness Of Retroactivity

"Nora , tell us what to do!"

"Should I sell the house and get a lawyer for my kids?"

First, visit and send an automated letter to your representative in Congress. You could send a hardcopy letter in the mail as a follow-up, too. Get to know your representative.

If you want to learn more about how to build a relationship with your leaders, visit:

The last part of that sequence of images and two prisoner letters is an article entitled, Getting your Message Through is Your Highest Priority.

A Case in Point: The story of Jerry A. Lewis, prisoner of the drug war

U.S. Sentencing Guidelines - A Monumental Mistake

by G. Patrick Callahan, Prisoner of War in America - this article originally appeared in the Razor Wire in 1998

It is difficult to believe that allegedly fair-minded, enlightened men of law could have come up with a sentencing scheme so positively counter productive, so incredibly and destructively punitive. The U.S. Sentencing Guidelines are a miserably failed attempt to create uniformity in sentencing in federal criminal cases throughout the United States. In a nutshell, it sets a mandatory, rigid schedule of punishment that would not vary from one federal jurisdiction to the next. In theory this might sound good, but the prosecutor is given great latitude in manipulating the system.

The story of Jerry Lewis is highly typical of the sort of tyranny that develops under the federal sentencing scheme when a prosecutor and a judge decide to double-team a defendant. Jerry Lewis was a first-time, nonviolent offender, a Marine Corps veteran of the Vietnam War awarded the Combat Action Ribbon and Vietnamese Cross of Gallantry. What follows is the rule in these cases and not an exception.

In 1988 Jerry was approached by a paid government informer under the control of a team of DEA agents. This informant attempted to set people up for drug cases and in this capacity approached Jerry, trying to make a direct drug buy. Jerry told him he wasn't into the drug scene but told him he had once known people who were. Over the course of the next few months the informer kept after Jerry to make a direct deal, but he was repeatedly told that it wasn't possible.

The government agents running the sting operation then switched their tactics and had the snitch question Jerry about the people he knew and if he could set up a meeting. Jerry made the mistake of telling the informer that he would "check around." But nothing happened and the informer came back now and then for a period exceeding two years. At no time did Jerry ever initiate contact. The informer's persistence finally paid off when Jerry told him he once knew a fellow in Florida named Carlos. For three more months the informer plagued Jerry about Carlos, and Jerry ultimately told him that he would call Carlos himself to see if he was still around.

The informant and his "money man" -- a DEA agent acting undercover -- quickly agreed to buy airline tickets to Florida. Jerry was reluctant to go as he was about to have an operation and was wearing a neck brace. When he arrived at the airport, he was immediately arrested. No trip to Florida was ever made; no introductions and no drugs were purchased. At the time of his arrest, Jerry was a family man with two sons and employed as a machinist and tradesman, a taxpayer.

Jerry made another mistake in the eyes of the US Attorney by taking his case to trial, pleading not guilty and taking the stand in his own defense. Although the U.S. Constitution guarantees the right to a trial and to face a jury of one's peers, under the U.S. Sentencing Guidelines prosecutors routinely extract the utmost punishment possible if you exercise your right. You have the right to a trial, in other words, but only god will help you if you ask for one.

Jurors in Jerry's case asked the judge straight away if they could consider entrapment as a defense, given their perception of the continuous hounding by the informer, goaded by the federal agents, over such an extended period of time. By asking this question, the jury revealed its concern that the whole maneuver was in the nature of coercion -- or at least unethical pressure upon someone who might not have been predisposed to commit a crime. The fact that Jerry never initiated contact seemed a highly mitigating factor. But the judge, David Hansen of the Northern District of Iowa, was adamant that the jury could not consider entrapment as a defense. Jerry was found guilty of conspiracy. No actual drugs were ever involved.

Here is how a person receives a thirty-year sentence for what Jerry did, or more correctly -- what he didn't do. The federal agents controlling the informer stated that IF he would have been introduced to Carlos, and IF Carlos would have been willing, and IF Carlos had any drugs, they would have wanted to buy five kilograms of cocaine.

If one looks in the Sentencing Guideline Manual under cocaine quantity-drug penalties are set by quantities dealt in-one would find that the "entry" level into the Sentencing Table is level 32 and reads: "At least 5 KG but less than 15 KG of cocaine."

In Zone D of the Sentencing Table, a level 32 assignation is set at 121 to 151 months, or just over ten years. In all civilized countries throughout the world, a five-year sentence is considered a harsh sanction. In England, for example, a 7-year sentence is considered "crushing." Longer sentences are usually only meted out to the truly violent and violent, repeat offenders. Most civilized countries in the world will not consider conspiracy as a crime in itself because, logically, it is tailor-made for abuse by police and prosecutors, a case of enough real crime to be dealt with without moving into the realm of the hypothetical. However, in America the "thought" police are hard at work.

Next, the sentencing judge decided that Jerry was "instrumental" to the scheme and that, without Jerry, the federal agents would not have been introduced to Carlos even though they weren't introduced to Carlos anyway. In America, you do not actually have to commit a crime; all you have to do is talk about it. Thinking aloud can be fatal. Judge Hansen and the prosecutor, not content with a mere ten or twelve-year sentence, thought that Jerry ought to be considered a leader in the enterprise.

The U.S. Sentencing Guidelines, additionally, have within them separate tables called "enhancements," a euphemism hiding the fact that they are double punishment for the same offense -- unconstitutional double jeopardy, that is. Jerry was given a role in the offense leadership enhancement of four extra levels on the Sentencing Tables which moved his sentence upward from 121 - 151 months, to 188 - 235 months. That's 18 years, but even this was not considered sufficient.

Judge Hansen next ruled that because Jerry had pled not guilty and taken the stand in his own defense -- a right under the Constitution -- but was found guilty, then he must have been lying. It does not matter if a defendant lies or not, if you lose in a federal trial (and something on the order of 98% of defendants lose), you can be hit with an "obstruction of justice" enhancement. Judge Hansen gave Jerry another two level increase on the Sentencing Tables.

This "departed" Jerry's sentence upward yet again, from level 36 to 38, or from 188 - 235 months, to 235 - 293 months.

Finally, Judge Hansen used the sliding scale at the top of the Sentencing Tables: the criminal History Category. The judge discovered that Jerry had a DUI first offense in 1986, his only brush with the law, to which he pled guilty, paid an $800 fine, and successfully completed one year of probation. Because the judge claimed that this offense occurred during the hypothetical time frame of the conspiracy charge, it should count as an "instant offense."

Jerry received a point for the DUI and two points for the instant offense for a total of three criminal history points, sliding him toward the center of the Table. If one runs a finger from Category II down to level 38, you will find that Jerry has now moved up to 262 -327 months: a total of about 24 1/2 years. He will also receive a 5-year period of supervised release tacked onto and counting toward his sentence. There it is, taxpayers: 30 years for a "dry" drug conspiracy. He must serve 85% of his sentence at a cost of about $30,000 per year. Jerry has been imprisoned for seven years and will not be released from custody until May of 2012.

Many people petitioned the court for leniency in Jerry's case, and nine of the twelve jurists, once they found out the horrible result of their verdict, asked the court for mitigation of sentence. Judge Hansen was unmoved; it was "next case", and so much for any thought of compassion-so much for equity in law. Equity is fairness and equity is the cornerstone of law in civilized countries throughout the world. Obviously, something terrible has happened in the United States, the death of equity within the criminal justice system.

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