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Statement of the Honorable Stanley Sporkin


Symposium on 10th Anniversary of Sentencing Guidelines - Judiciary Committee, Washington, D.C.
September 9, 1997

Here are some general observations. We are filling our jails with a lot of secondary violators of the drug laws. Recently, I was told that under the sentencing guidelines, I would be required essentially to sentence a drug addict to a ten year period of incarceration. If this person were from a different socio-economic background, he would have gone to the Betty Ford Clinic for 60 to 90 days. As I contemplated the sentence I would have to impose, all that came to mind was a modern day version of "Les Miserables."

Under the law, a person who simply possesses or uses cocaine base in excess of five grams must be sentenced to a minimum of five years. Possession or use in excess of 50 grams requires a mandatory minimum sentence of ten years. Keep in mind, the cost of maintaining a defendant in prison is approximately $30,000 a year. We are reaching the point where we are going to have to open the prison doors and let these prisoners out. Already, Gov. Pataki of New York has indicated he might have to do this. I believe Florida has also had to do the same thing.

It is clear that in certain circumstances individuals are being sentenced to imprisonment periods greater than justified by the facts. Let me give you some anecdotal support for that statement. These are all my cases. So with a District Court judiciary of some 900 judges, it can be seen how wide spread these excesses are. There is one case where I had to sentence a 49 year old woman to 21 years in prison for selling $25 worth of crack to an undercover officer.

In another case, a defendant faced a 30 year sentence for selling 6.7 grams of crack to an undercover officer to whom the seller was attracted for the wrong improper purpose. I was able to pare the sentence down to about seven years but even that was too long. This individual was as much a threat to society as my eight year old grandson.

And how about this one: A young man is shot as he was about to enter his apartment. As he is lying in front of his door in a pool of blood, the police arrive and begin to search for his assailant. Thinking the assailant may be in his apartment the police break down the door, enter the apartment, and commence their search for the assailant. They do not find the assailant, but they do find a quantity of illicit drugs. When the individual recovers from his gunshot wound, he receives another shot from the authorities in the form of an indictment. The individual admits the drugs are his and comes before me to be sentenced. The sentencing guidelines compelled a sentence in excess of 15 years. Yes, my friends, the victim whose life was almost snuffed out, is to serve a jail term of 15 years. I decided to exercise a limited amount of compassion and depart downward to the mandatory minimum sentence of 10 years. In my view, a sentence of two years might be defensible. Although because he almost lost his life, a probationary sentence would not be unreasonable. On appeal, I was reversed by a two to one vote and was told there was no basis for a downward departure. I was instructed to resentence the individual under the guidelines.

I also had a lady before me who was a courier. The guidelines called for a five year prison sentence. She was the Mother of three children, one of which, the youngest, was being breast fed at the time of the sentence. When I departed downward in order to allow her to be with her child for the first two years of her life, I was reversed by the Court of Appeals which said I had not sustained a case for departure.

That case illustrates the somewhat draconian and disproportionate sentences imposed by implementing the 1984 guidelines. I had before me a defendant who was convicted of one count of distribution of 50 grams or more of cocaine base. For this charge, the guidelines called for a sentence of 87 to 108 months or a year and 3 months to nine years.

It was undisputed that this defendant was a drug addict. In fact, police testimony indicated that he received only drugs for his courier service and no other compensation. The man was physiologically dependent on cocaine. Clearly what he needed most was medical and psychological counseling. He was not armed at the time of his arrest nor did he have any criminal history indicating a propensity for violence. His only prior offense was a 1985 conviction for possession with intent to distribute marijuana. Notwithstanding this however, as noted, the guidelines imposed a period of imprisonment of up to nine years.

To indicate the non-sensical nature and the inconsistency of the Commission's guidelines, it is instructive to compare the above mentioned maximum sentence of nine years for a drug addict to a quite different case I had involving a bank robber.

In the latter case, I was presented with a defendant who had agreed to plead guilty to armed bank robbery. This particular defendant had a lengthy criminal history beginning at age 15 and had demonstrated a clear propensity for violence. In fact, at the time of the bank robbery sentencing before me, he was imprisoned in Virginia after having been convicted of another armed robbery of a different bank.

Given the egregiousness of this man's crimes and the obvious threat which he posed to society at large, one would think that the sentencing guidelines would reflect as much by setting a relatively lengthy imprisonment for such a criminal.

In fact, the guidelines only provided for a sentence of 63-78 months or five years and three months to six years and three months. Moreover, they allowed for that rather modest sentence to be served concurrently with the prison term already being served for the other armed robbery.

When compared to the case of the drug addict-courier, the arbitrariness of the guidelines should become readily apparent.

These are just some glaring examples. I do not stand alone. My colleagues on the Bench have had similar experiences. For example, in May 1995, the WashingtonPost carried the following story:

A federal judge said yesterday that he had no choice but to impose what will amount to life sentences on three D.C. police officers who accepted $2,000 bribes in an FBI sting, although he considers the penalty "horrific," "unfair" and "tragic."

Because I do not want to rely solely on anecdotal evidence, I have had our Probation Office make a comprehensive study of sentences imposed by me during the past two years. The Probation Office tracked the following information:

1. The guidelines sentence;
2. The actual sentence; and
3. The sentence that the Probation Office would have recommended pre-guidelines.

Here are the results of that study. The study focused on thirty-four cases over the last two years. Of the 34 cases, the guidelines were applicable in 31 cases. The most notable finding in the study was the drastic disparity between what fell within the current guideline ranges, and what the probation officers would have recommended without the guidelines. In one case, the non-guideline suggestion was 17 years less than the lower end of the specified guideline range.

In some two-thirds of the cases, 18 of the 31 cases, the recommendation of the Probation Officer would have been BELOW the guideline range. In particular, in 13 out of 18 DRUG RELATED offenses, the Probation Office believed that the guidelines were excessive. Of all of the cases, according to the Probation Office, only one case warranted a stricter sentence than that required by the guidelines. That case dealt with credit card fraud, a white collar crime, where the guideline range seems to produce sentences lower than would have been imposed during the pre-guidelines period.

It must be kept in mind that under the Sentencing Reform Act, a good part of the sentencing function has been transferred from the court to the prosecutor. The prosecutor is able to break through mandatory minimum and guideline sentences by providing a defendant with what is known as a 5k.1 departure letter. The ostensible reason to provide such a letter is to formally recognize the cooperation of the defendant. Only the prosecutor has the authority to provide such a letter. The court's review of this practice is very narrow. This has brought about a number of anomalies and outright problems. Such problems arise, for example, where a drug dealer and his drug courier have been apprehended. Because the drug dealer is in a better position to cooperate with the government and provide meaningful "services," he can get a 5k.1 letter. The courier or runner, who is usually a young woman, knows so little about the drug business that she is unable to provide the necessary cooperation to obtain a letter. This results in the more egregious offender getting a lesser sentence than the less culpable offender.

Another problem arises where the government extracts from a defendant the performance of a new service in order to obtain a "cooperation letter." Often times, the government requires more than merely having the accused explain his or her role in the underlying conduct. What is often required is for the accused to participate in a sting operation to assist the government's investigation of entirely new criminal activities. Such defendants have very little to say about their new assignment. They either do what their police officer handlers request of them or they do not get a letter. Often they are given assignments that pose great risks to their well being. It is not unusual for the "working defendants" to be sent into high crime drug areas to make drug purchases from suspected drug dealers. The persons involved get no pay for their services and are required to do just as their handlers direct them to do. Some might ask whatever happened to the 13th Amendment.

The final point is that there is a possible legal issue involved in the current sentencing practice even though I have some difficulty in fully articulating it. Prior to the enactment of the Sentencing Reform Act of 1984, a convicted criminal was required to be sentenced by a judge who had to look that person in the eye and listen to what he or she had to say before imposing sentence. Based on what the defendant said, the presentence report and allocution by the prosecutor and defense counsel, sentence was pronounced. To many judges what the person said and his or her contrition were very important in imposing sentence. This is not necessarily the case any longer. Now appellate courts have gotten into the act. Where a sentence has been appealed, the appellate court becomes a new factor in what the ultimate sentence is. This is so even though the three judge panel has not seen or personally heard from the defendant. This is a clear deviation from the way our criminal justice system has operated for over 200 years. There seems to be something fundamentally wrong where our system now allows an individual to, in effect, be sentenced in absentia.

Now that we have a good base line under our sentencing system, I believe the time has come for a comprehensive review as to its effectiveness and fairness. The system has now been with us almost ten years. It is time to stand back and take a new look at the system. Where changes are dictated they should be made.

Permit me to leave you with a suggestion. I am enough of a pragmatist to realize we are not going to return to the pre-guidelines era. Accepting this view, here is a suggestion that I hope will be given careful consideration where a judge believes a departure is warranted either upward or downward. At the request of either the government or defendant, the sentencing judge would convene a three judge court to consider the appropriateness of the "non-guideline" sentence. Although I would have the sentencing judge as part of the three judge court, I can understand that such a proposal might be objectional to some. The advantage of this proposal is that the sentencing function is placed where it should be before trial judges. It would also give a measure of objectivity to a departure sentence.

While no one can guarantee this change will be effective at least its entitled to a test. In my view, it has the real possibility to remove from the system many unjust sentences District Courts are obligated to impose at this time. Thank you for allowing me to express my views on this very important subject.

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