Pubdate: Tue, 18 Jan 2005
Source: New York Times (NY)
Copyright: 2005 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak
Bookmark: http://www.mapinc.org/topics/federal+sentencing

JUDGES' NEW LEEWAY IN PASSING SENTENCE MAY CHANGE LITTLE

Allowing federal judges great leeway in sentencing criminals does not have 
to breed chaos, say judges and sentencing specialists in states that 
already have such systems.

When the Supreme Court said last week that federal sentencing guidelines 
were merely advisory, many prosecutors and lawmakers predicted that federal 
judges would start issuing wildly inconsistent sentences based on little 
more than sentiment and whim. But the few states that already use similar 
systems have produced remarkable conformity.

"There is a sense out there that an advisory sentencing guideline system 
can't work," said Richard Kern, the director of the Virginia Criminal 
Sentencing Commission, which oversees the system that most resembles the 
way federal sentences will now be handed down. "But our guidelines' 
compliance rate is higher than the federal system, which had a mandatory 
system."

In Virginia, judges follow the state's advisory guidelines 81 percent of 
the time, Mr. Kern said. In the District of Columbia, which converted to an 
advisory system for its local courts this summer, judges have been found to 
follow the guidelines 87 percent of the time.

"For defendants facing sentences under state advisory guideline systems," 
said Carmen Hernandez, a vice president of the National Association of 
Criminal Defense Lawyers, "85 percent of the sentences imposed in those 
systems end up being the sentences that would have been imposed under the 
guidelines."

Under the federal system that was considered mandatory, judges sentenced 
defendants within the guidelines only about 65 percent of the time.

Legal scholars, judges and sentencing specialists caution that there are 
substantial differences between the state systems and the new federal one, 
and that compliance by federal judges, who have increasingly chafed under 
the mandatory guidelines, can be expected to decline. But they add that the 
experience in the states may suggest that the change in the federal system 
will be evolutionary rather than radical.

In the past few days, federal judges have indicated that the guidelines 
will retain considerable force. "In all but the most unusual cases," Paul 
G. Cassell, a federal judge in Salt Lake City, wrote in a decision on 
Thursday, "the appropriate sentence will be the guidelines sentence."

William G. Young, the chief judge of the Federal District Court in Boston, 
said that he expected only minor changes in sentencing practices.

Among the states, Virginia appears to be an instructive model, said Daniel 
F. Wilhelm, the director of the state sentencing and corrections program of 
the Vera Institute of Justice, a nonprofit research group based in New York.

The system that the Supreme Court created for federal courts is very 
similar to what Virginia created 10 years ago, Mr. Wilhelm said Thursday. 
"What Virginia suggests is that you can balance concerns of public safety 
along with a sentencing guideline system that trusts judges with 
discretion," he said. "And there would be very few people who would accuse 
Virginia of not being a tough-on-crime state."

Other states with advisory guidelines have had less success in persuading 
judges to apply them.

"Since they were voluntary, people didn't necessarily look at them," Judge 
Michael A. Wolff of the Missouri Supreme Court, the chairman of the state's 
Sentencing Advisory Commission, said of his state's guidelines, which were 
revised in June to try to get judges to use them more often. "The 
compliance rate was poor, I think less than half."

In general, though, the state systems say they are succeeding.

Michael Connelly, the executive director of the Wisconsin Sentencing 
Commission, said, "It's not necessarily the case that disparity and 
noncompliance are inevitable in an advisory system."

In 1984, when Congress enacted the guideline system, it rejected an 
advisory system, relying in part on testimony from Scott Harshbarger, then 
a district attorney in Massachusetts.

"Advisory and voluntary guidelines were not working," Mr. Harshbarger, now 
in private practice, said in an interview on Friday. "You have to have some 
measure of uniformity, consistency and predictability. A system of 
voluntary guidelines is not good for public safety or confidence in the 
justice system."

Some scholars say much has changed in the state courts in the intervening 
years.

"Judges now get in line a lot more, for two reasons," said Douglas A. 
Berman, a law professor at Ohio State University. "One is, they're scared 
about having the federal system. Another reason is that, in the 1970's, 
with the focus on rehabilitation, the pervasive philosophy was to view 
every case individually. In the last 25 years, the thinking has changed, as 
we focus much more on the crime than the defendant."

Federal judges had been under criticism, even under the old system, as 
varying too much in sentencing. Over all, they sentenced 65 percent of 
defendants within the guidelines in 2002, the most recent year for which 
data were available. In 17 percent of cases, they issued lesser sentences 
for other reasons, generally involving a defendant's personal circumstances.

And in another 17 percent of cases, they showed leniency to defendants who 
cooperated with prosecutors, which most law enforcement officials say they 
find acceptable.  Judges imposed harsher sentences than the guidelines 
would have required about 1 percent of the time.

Departures from the federal guidelines depended on the type of crime and 
where it took place. People convicted of antitrust were sentenced within 
the guidelines 31 percent of the time; those convicted of possessing drugs, 
95 percent. In Arizona, 31 percent of all sentences were within the 
guidelines; in southern Virginia, 89 percent were.

In some ways, the state systems can provide only limited guidance about how 
the new federal system is likely to operate. State judges, who are usually 
elected, face different pressures and incentives than do federal judges, 
who have life tenure.

"In Virginia, judges are elected by the state Legislature," said Kevin R. 
Reitz, a law professor at the University of Colorado and an expert on state 
sentencing practices. "That makes them a little fearful of ignoring the 
guidelines. Reckless deviation from the sentencing guidelines may not be 
good for their careers."

State systems also have budget pressures that are largely absent from the 
federal system.

"In the overall federal budget, the total corrections budget is well below 
1 percent," Professor Reitz said. "In the state systems, it might be more 
on the order of 15 or 20 percent. In the vast majority of states that have 
sentencing guidelines, the guidelines were designed in the first place to 
respond to budgetary pressures."

Judges in those states, said Professor Berman of Ohio State, "get in 
political trouble with their legislators, not their voters, if they 
sentence too long."

To monitor compliance, the new federal system calls for an active role for 
appeals courts, creating an important control absent from most state 
systems. "In Virginia," Mr. Wilhelm said, "appellate review is virtually 
nonexistent."

The Supreme Court decision requires federal appeals court judges to 
determine whether sentences are reasonable. Still, Professor Reitz 
concluded that the differences between state systems and the new federal 
system may outweigh the similarities.

"Geography and life tenure and the strong tradition of judicial 
independence on the federal bench and the fact that the federal sentencing 
guidelines were not created with judicial preferences in mind all suggest," 
he said, "that an advisory system is going to lead to very disparate 
results from district to district and from judge to judge." 
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MAP posted-by: Richard Lake