Pubdate: Thu, 30 Dec 2004
Source: Wall Street Journal (US)
Copyright: 2004 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Gary Fields, Staff Reporter Of The Wall Street Journal
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

Sentencing Shift

IN CRIMINAL TRIALS, VENUE IS CRUCIAL BUT OFTEN ARBITRARY

Taking Over From the States, Tough Federal Courts See Surge of Small-Time Cases

A Bullet in a Box Gets 15 Years

James McFarland Jr. picked a bad time and place for his crime spree. In 
November and December 1998, Mr. McFarland robbed four Fort Worth, Texas, 
convenience stores, emptying cash registers of sums ranging from $50 to 
$1,500. Although brandishing a handgun, he never fired a shot and no one 
was injured.

Five weeks later, Fort Worth police, with the help of a witness who got a 
partial license-plate number of his car, nabbed Mr. McFarland at his apartment.

The case was funneled to the local prosecutor. Had it stayed there Mr. 
McFarland could have been sentenced to as few as 13 years in prison. But 
his crimes occurred just as the local U.S. attorney was taking a number of 
run-of-the-mill robberies into the federal system under a 1946 federal law 
known as the Hobbs Act, originally designed to keep racketeers from 
obstructing interstate commerce. Mr. McFarland's sentence: 97 years.

The former college basketball player appealed, but the appeals court came 
back with a split 8-8 decision, and his sentence stood. In opposing the 
federal sentence, however, Appeals Court Judge Patrick E. Higginbotham 
questioned whether Congress "intended to reach the proverbial 'robbery of 
the lemonade stand' " or "claim federal hegemony over local activities, 
including a street mugging."

Judge Higginbotham's question strikes at one of the core inequities in the 
U.S. criminal justice system: the often-arbitrary decisions about which 
suspects should be prosecuted in state court and which in federal court.

For much of America's history, the distinction was clear. Almost all crimes 
were handled by the states. Only a tiny handful involving a clear offense 
against the entire nation, such as treason or bribery of federal officials, 
were brought into federal court.

But in recent decades Congress has passed a raft of statutes that mandate 
long terms in federal prison for crimes ranging from drug dealing to 
carjacking. The Violent Crime and Law Enforcement Act of 1994, for example, 
expanded the federal death penalty to cover about 60 offenses, including 
major drug trafficking and drive-by shootings resulting in death. Typically 
states already have their own laws against these offenses that set 
sentencing parameters for state judges to follow.

The decision about who should prosecute an offender is crucial, because 
federal sentences are usually much tougher. The average sentence for 
federal defendants convicted of drug charges in 2002 was three years and 
eight months longer than the average for state drug charges, according to 
the Bureau of Justice Statistics. In general there are two reasons for a 
suspect to end up in federal court: Either federal agencies were involved 
in his arrest, or local authorities refer his case to federal prosecutors 
in the hope of getting tougher penalties.

The gap between federal and state sentences could expand if the Supreme 
Court strikes down guidelines that currently govern most federal sentences. 
The court is now hearing a case in which lawyers for criminal defendants 
are seeking to have the guidelines declared unconstitutional. If that 
happens, the sentencing option supported by the Justice Department would 
let judges hand down even more severe sentences than the guidelines 
currently allow.

Between 1970 and 1998 the number of federal criminal statutes nearly 
doubled to 3,000, according to a 1998 American Bar Association study, the 
most recent comprehensive data available. Legal professionals say the 
number is much higher now -- probably around 4,000 -- although it's hard to 
tell how high because the statutes aren't listed in one place. The number 
of cases brought by federal prosecutors in 2001 was 82,614, up from 44,144 
in 1982, according to the Bureau of Justice Statistics.

Robert Litt, a former deputy assistant attorney general for the Justice 
Department's criminal division, attributes the surge in new laws to "a 
tendency on the part of Congress to deal with any sort of serious problem 
by making a [federal] crime out of it." Members of Congress often point to 
the new laws as evidence they are producing concrete steps to fight crime.

Many of the laws draw on the federal government's constitutional authority 
to regulate interstate commerce. Proving a link to interstate commerce is 
rarely a problem. Most gun crimes involve a weapon that was made in a 
different state and most drug deals involve contraband that came from out 
of state or from abroad. In Mr. McFarland's case, the federal prosecutors' 
theory was that the money he stole could have been used by the stores in 
Fort Worth to buy out-of-state goods.

Many prosecutors credit the broadened scope of the federal justice system 
with reducing crime and drug trafficking in some long-troubled regions. 
Joint federal-state task forces using federal money and agents have broken 
up drug-dealing havens and cleared the streets of hardened repeat 
criminals, they say. Offenders arrested in such efforts often end up in 
federal court -- in part because prosecutors have broader laws and more 
severe sentences at their disposal there.

Local and federal authorities sometimes jostle over prosecution of 
high-profile cases. But more often, according to Justice Department 
spokesman Mark Corallo, local officials tell federal prosecutors: "Hey, 
we'd love you guys to come in here and bring federal charges. You've got 
better penalties." Says Mr. Corallo: "Defense attorneys may not like it but 
we're seeking justice."

James Sylvester Hester, a self-employed car repairer and salesman, didn't 
like it when his case ended up in federal court. Mr. Hester was cruising 
along a main road in Charlottesville, Va., in February 2003 when a local 
cop pulled him over because the 1991 Chevrolet he was driving didn't have 
license plates.

Mr. Hester didn't have a driver's license and initially lied about his 
identity. As he was being searched by an officer, Mr. Hester dropped a 
yellow Ziploc bag on the ground and attempted to hide it by stepping on it, 
according to the police report on his arrest. The officer quickly found 
nine small bags of crack cocaine on Mr. Hester. Altogether, Mr. Hester, 
then 42 years old, had about 11 grams of crack.

During a subsequent interview at the police station, Mr. Hester admitted he 
had been trying to deal drugs for three weeks. His connections were so 
limited he had sold little, according to the police report and his lawyer, 
Dana Slater. Local officials charged him with possession of crack with 
intent to distribute.

In a small town, 11 grams of crack in the hands of a novice raised an 
obvious question: Where was it coming from? Federal prosecutors often zero 
in on a petty criminal in the hopes of getting information on bigger fish. 
That's especially true for drug cases in places where the state penalty for 
low-level dealing isn't big enough to entice the defendant to cooperate.

When Mr. Hester, who was free on bail, showed up in state court for a 
preliminary hearing, he learned that his case was being transferred to 
federal court. Federal prosecutors had obtained a sealed indictment two 
weeks earlier, and deputy U.S. marshals now took him into custody.

Unfortunately for Mr. Hester, he had little information to offer the feds. 
Ms. Slater, his lawyer, says federal agents questioned him several times 
about who was bringing cocaine into Charlottesville. Mr. Hester couldn't 
tell them. He had bought the drugs he intended to sell in a parking lot 
from a dealer he didn't know. Since he couldn't get any credit for 
cooperation Mr. Hester was sentenced in October 2003 to five years in 
prison, the minimum required under federal drug laws. Had he been sentenced 
in state court, Mr. Hester would likely have faced between seven and 19 months.

In the case of Dane A. Yirkovsky, 41, local officials turned to federal 
prosecutors to lock up a man they saw as a career criminal.

Mr. Yirkovsky had been caught burglarizing a church, post offices and other 
places in Iowa to support his drug habit in the early 1990s. By 1998, 
according to some accounts, he had somewhat cleaned up his act. He went 
back to school for a high-school diploma and got a job installing drywall. 
He started to live in Cedar Rapids, Iowa, with Edith Turkington, a janitor 
at the local community college. Her house had often been a place where 
those with drug problems could go to get a meal and a place to stay. In 
lieu of rent money, Mr. Yirkovsky agreed to help Ms. Turkington with some 
remodeling.

One day in October 1998 as he ripped up an old living-room carpet, he found 
a .22 caliber Winchester bullet underneath. He put it in a box in his room 
and didn't think about it again, according to the presentence investigation 
report.

On Dec. 9, 1998, Cedar Rapids police approached him, saying an 
ex-girlfriend had lodged a complaint accusing him of taking some of her 
food stamps. Mr. Yirkovsky told the police they were free to search the 
house. They found the bullet. Although Mr. Yirkovsky had an extensive 
record, none of his past crimes had involved a firearm, and police found no 
gun in the house.

Mr. Yirkovsky wasn't arrested that day. Instead, local police conferred 
with the state prosecutor and determined that Iowa law didn't prohibit a 
convicted felon from possessing ammunition. Federal law did, however, and 
the case ended up on the U.S. attorney's desk.

In hectic big-city jurisdictions, federal prosecutors probably wouldn't 
have bothered with the case. In Cedar Rapids, though, the U.S. government 
decided to get involved. Patrick J. Reinert, the assistant U.S. attorney 
who prosecuted the case, says it's worthwhile for the federal government to 
go after repeat criminals who don't seem to have rehabilitated themselves 
- -- especially if federal law provides the easiest route to prosecution.

Mr. Yirkovsky pled guilty Jan. 31, 2000, to being a career felon in 
possession of ammunition. In May, the judge sentenced him to the mandatory 
minimum set by federal law for that crime: 15 years in prison. Mr. 
Yirkovsky appealed on the grounds of cruel and unusual punishment. The 
Justice Department responded that it was in society's interest to keep 
behind bars those with lengthy criminal records who cannot be deterred from 
further crime. An appeals court, while calling the sentence excessive, 
upheld it. The Supreme Court declined to hear the case.

One case of federalizing crime that prosecutors cite as a success story is 
the cleaning up of a drug-plagued Washington, D.C., apartment complex in 
October 1998. It was designated a "high-intensity drug trafficking area," 
bringing federal money for police overtime and a senior federal prosecutor 
to oversee the cases of those arrested. Local police, who often get fed up 
making drug arrests because local sentences are light, attacked drug 
dealing in the neighborhood with new vigor. In a matter of days, police 
arrested at least 10 people for selling crack cocaine .

At the time, the U.S. attorney's office in Washington usually wouldn't take 
a crack case to federal court unless it involved 50 grams or more. Few of 
those arrested had even been selling five grams, the trigger amount for a 
mandatory minimum federal sentence. But because of the federal program, 
federal prosecutors looked around and found another weapon: The sales had 
happened within 1,000 feet of a school. Because the defendants had criminal 
records, the minuscule amount of drugs still triggered a mandatory minimum 
sentence of three years unless the defendants cooperated.

"This was not some general policy of taking small narcotics cases to 
federal court; this was a focused program," says Richard Edwards, the 
senior prosecutor who handled the cases. All of the defendants pled guilty 
and several helped authorities implicate others, lowering the crime at the 
complex and elsewhere.

It was a similar federal-state program that nailed Mr. McFarland, the Fort 
Worth robber of convenience stores. He embarked on his string of heists 
just as U.S. attorneys in Texas were teaming up with state police in Texas 
Exile, an initiative targeting gun offenders. The initiative took advantage 
of strict provisions in federal law against using firearms in multiple 
crimes. Every crime after the first one in which the defendant uses a gun 
adds 25 years to his sentence on top of the time for the crime itself.

A career criminal, Mr. McFarland had a rap sheet that included four 
robberies. At best his crimes would usually land him a couple years in 
jail. He was the perfect target for Texas Exile. In an opinion piece 
written at the time in a Texas public policy journal, state Attorney 
General John Cornyn explained that prosecutors "want to exile habitual 
offenders, removing them from the streets."

Since Mr. McFarland had committed four robberies, the last three of them 
added 25 years each, or a total of 75 years to his sentence. Combined with 
other elements, he ended up with a 97-year sentence. Mr. McFarland, now 45 
years old, will likely spend the rest of his life in prison.
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