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March 19, 2006 - Des Moines Register (IA)

Data Show More Variety In Sentencing

Some Judges Use Too Much Discretion, Are Too Lenient, Critics Say

By Jeff Eckhoff

Return to Drug War News: Don't Miss Archive

In the first 13 months since federal judges were handed more freedom in sentencing, punishment disparities have developed among courthouses nationwide, new data show.

Federal prosecutors and judges in Iowa downplay the meaning of the statistics, but defense attorneys say the numbers reinforce what they have always believed: Varying judicial temperaments, combined with harsher prosecution in Iowa's northern half, can create widely different sentences for similar crimes.

"There are some judges who are far less likely to" depart from federal sentencing guidelines, said Alfredo Parrish, a defense attorney who has represented alleged criminals in both of Iowa's federal districts. "Everybody knows it."

The data, from the U.S. Sentencing Commission, indicate a new attitude among judges since a January 2005 U.S. Supreme Court ruling that gave them much more leeway in how they dole out punishment.

Nationally, judges have been 10 percentage points more likely since the change to deviate from what were mandatory sentencing rules before then. Almost always, they deviated with less-harsh sentences.

The guidelines, created in the mid-1980s because Congress wanted more uniformity in punishments, gave judges scant wiggle room. After only 13 months with "advisory" rules, Justice Department officials have urged Congress to take away judges' freedom.

William Mercer, U.S. attorney for the District of Montana, last week urged a congressional subcommittee to write new rules that would create more mandatory minimum sentences.

"There has been an undeniable erosion in the rate of compliance with the guidelines and an appreciable and troubling increase in sentencing disparities across the nation," Mercer said. "In short, both consistency and accountability are eroding."

In Iowa, that's meant a sentencing gap between two federal court districts. Previously, judges in the Northern and Southern districts followed the suggested sentences about 74 percent of the time.

Since the change, judges in Iowa's Northern District have continued to issue guideline-approved sentences in nearly 69 percent of cases. But in the Southern District, which includes Des Moines, the percentage fell to 49 percent.

Federal court authorities in Iowa argue that the numbers don't adequately reflect all the factors that go into a sentencing decision. But Steve Swift, head of a loose affiliation of northern Iowa defense lawyers, said the trend could raise the question of fairness.

"The danger, from my perspective, is that we start to get back to a world of variances in sentences, and then the question becomes, 'Is that a fair system?' " he said.

"We have these guidelines, and we tell ourselves that we're going to be handing out equal sentences, and maybe we're not."

Exact comparisons between Iowa's two districts are difficult because of differences in caseloads and in the circumstances of the crimes.

For instance, the two judges of the Northern District sentenced two defendants the first week of March. Meanwhile, three judges in the Southern District handed down 20 sentences.

None of the cases matched exactly in terms of the defendant's background, age or criminal history. But a spot comparison shows that William Edward Winn and Jodie Elaine McAtee, sentenced in separate districts on meth-making charges, drew sentences that were only slightly different: Southern District Judge Robert Pratt sentenced Winn to 16 1/2 years; northern Judge Linda Reade gave McAtee 13 years.

The issue gets more complicated when one factors in what lawyers say is a key difference between the districts - the frequency with which prosecutors ask for sentences to be reduced.

Southern District Judge Ronald Longstaff on March 3 sentenced David S. Brady to two years and nine months for marijuana trafficking. On the same day, northern Judge Mark Bennett pondered whether admitted pot distributor Kim Darby Saenz deserved the 3 1/2-year sentence that prosecutors had requested. Bennett had overshot a previous request for leniency when he sentenced Saenz to one year and eight months, which was overturned on appeal.

The federal sentencing report does not include detailed information needed to compare each judge's willingness to follow the guidelines. Federal law in most cases bans major departures unless prosecutors ask a judge to do so. The requests for special treatment usually are reserved for informants who help with other cases.

In 2004, under the old sentencing rules, Northern District prosecutors filed for leniency in 23 percent of their cases, compared with 20 percent in the Southern District.

Between Jan. 12, 2005, and Feb. 1, 2005, northern prosecutors sought lower sentences in only 14 percent of their cases, compared with 21 percent in the Southern District.

Bennett, who has criticized the stinginess of northern prosecutors on many occasions, has not yet ruled on the Saenz case and declined to be interviewed for this article.

Rich Murphy, a prosecutor for Northern District U.S. Attorney Charles Larson Sr., said the sentencing statistics are "troubling" at first glance, but he disputes any implication that his district treats anyone unfairly.

"My sense is that we're not doing anything dramatically different" this year, Murphy said. "I think it's something that ought to be studied, but I don't think you can necessarily immediately draw the conclusion that there is an increased likelihood of incarceration between one district and the other."

Murphy and Southern District U.S. Attorney Matt Whitaker questioned the value of the statistics, which are based on sometimes-incomplete case information reported to the sentencing commission. Prosecutors estimated that the numbers reflect only 60 percent to 85 percent of the work that took place.

"There are so many moving variables here," Whitaker said. "I don't think you can draw any analysis of what this says."

Reade, known among defense attorneys in the Northern District for her stiff sentences, concedes that she is "not much of a departer" from the sentencing guidelines.

Southern District judges voiced a willingness to be more lenient than the guidelines, but "even when I vary from the guidelines, I usually don't vary very far," Longstaff said.

"I think I'm still letting the guidelines be a very important factor in the sentence. I'm just not letting them be the only factor."

Frank Bowman, a law professor at the University of Missouri-Columbia who has studied the statistics, said the Iowa numbers show that "plainly, something different is happening here."

A broader point, however, is the fact that so many federal judges have proven so willing to use their new-found sentencing discretion, Bowman said.

"I don't think you can really deny the obvious, which is you have an advisory system where judges are equally free to go up and down . . . and they're going down at a rate of 22 to 1," Bowman said. "No matter how you slice it, it seems to me that you've got a judgment being expressed here that the sentences mandated by the guidelines are far too high more often than they're too low."

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