The Law Library
U.S. Sentencing Guidelines - A Monumental Mistake
by G. Patrick Callahan, Prisoner of War in America
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. Perhaps ominously, one of its chief architects was Justice Stephan Breyer of the Supreme Court. 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 idealistically will not vary from one federal jurisdiction to the next. In theory this might sound good, but as is typically the case, there is a fly in the ointment: the prosecutor, and the latitude he has in manipulating an already draconian system.
What the U.S. Sentencing Guidelines have succeeded in doing-in addition to setting punishment levels more appropriate to a Stalinist regime-was to shift discretion from federal judges to prosecutors. A greater mistake could not have been made, a case of placing enormous power in the hands of those proven least competent to mete it out. It is interesting to note that this power was taken from judges who, apparently weren't much more capable themselves of uniform administration. It is simply amazing that the subsequent system would suppose that prosecutors, many of them fresh out of law school with scant life experience, could do better than the seasoned judges they usurped.
The case of Jerry Lewis, featured on our P.O.W. wall of the website and here in this article, 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, non-violent offender, a Marine Corps veteran of Vietnam awarded the Combat Action Ribbon and Vietnamese Cross of Gallantry. We emphasize that what follows is the rule and not an aberration:
In 1988 Jerry was approached by a government informer who was being controlled by a team of DEA agents. He was seeking to set people up for drug cases and approached Jerry, trying to make a direct drug buy. Jerry told him he wasn't into the drug scene but he had 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 fundamental mistake in taking his case to trial, pleading not guilty and taking the stand in his own defense. Although the U.S. Constitution guarantees you the right to a trial and to face a jury of your peers, under the U.S. Sentencing Guidelines, prosecutors extract the utmost punishment possible if you exercise your right. You have the right to a trial, in other words, but god help you if you ask for one.
The jury in Jerry's case asked the judge straight away if they could consider entrapment as a defense, given 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 at no time did Jerry ever initiate 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." (Unless you are Irish.) 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, that, without Jerry the federal agents would not have been introduced to Carlos even though they weren't introduced to Carlos anyway. In America, conjecture is existential to all accused persons: 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, in addition to sentencing tables that seem devised by Caligula, have within them separate tables called "enhancements", a euphemism hiding the fact that they are double punishment for the same offense, in a real sense are unconstitutional double jeopardy. 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, which he pled guilty to, paid an $800 fine for, 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 his finger from Category II down to level 38, one 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 and this, my friends, is justice in America, the Land of the Free. And you pay for it out the nose. You pay for a sentencing scheme that could have been devised by either Genghis Khan or the village idiot.
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.