U.S. Sentencing Rules to Stress Punishment : New Court Guidelines, Effective This Week, Will Toughen Penalties, Limit Probation and Paroles

The most comprehensive sentencing reform in the history of the federal judicial system becomes law this week in courtrooms across the country, toughening penalties for a wide range of crimes, virtually eliminating probation for most offenders and wiping out the federal parole system.

Judges and lawyers alike are predicting that the new sentencing guidelines--the product of two decades of debate over how to fix punishment for federal crimes--will spawn chaos in the courts and send a flood of new prisoners into the nation’s already overcrowded prison system.

Yet nearly all agree that they provide for the first time a framework for punishment in a system that has historically been subject to judicial whim.

The guidelines, established by the U.S. Sentencing Commission at the direction of Congress, curtail the broad discretion federal judges have traditionally exercised by establishing a narrow range of penalties and requiring criminals to serve out their full prison terms.

Penalties for white-collar crime, drug trafficking and repeat offenses are all substantially boosted--in part because of two new crime laws which take effect with the guidelines. At the same time, the number of federal defendants required to serve time is expected to escalate from slightly more than half, at present, to more than 80%.

Need for Uniformity

Those on both sides of the debate agree that the new guidelines, echoing recent state efforts at sentencing reform, largely remove both bias and compassion from the sentencing process--focusing on punishing the crime, not the criminal--and virtually rule out the notion of rehabilitation as a goal of sentencing.

“We’re saying very concretely, right at the beginning, that the purpose is to punish and to deter. We’re no longer going to fool ourselves by thinking that somebody is likely to be rehabilitated by going to prison,� said Ilene Nagel, an Indiana University law professor who served on the commission that drafted the guidelines.

At the same time, she said, the standards are intended to provide uniformity to a sentencing process that has displayed troubling variations across the nation depending on the sex, race and marital status of the defendant and the peculiar mores of the region in which a crime was committed.

Trial judges have been almost uniformly suspicious of the new guidelines, many complaining that the complex tables and formulas for setting punishments guarantee confusion and a reduction in their own ability, quite simply, to be judges.

“They stink,� said U.S. District Judge Dickran Tevrizian, a former state court judge. “The concept is very, very good. I think it’s what everybody in the judicial system would like: fairness, equality, the perception of a system that is more equitable and honest. Great. Sounds good. Ain’t gonna work.�

“I think most judges agree there ought to be a better system, but I don’t know any so far who like what they’ve seen,� U.S. District Judge Terry Hatter Jr. said. “I don’t want to end up just being a person who sits with a calculator at the bench and comes out with a set of numbers.�

‘A Step Backward’

“My feeling is it’s a ridiculous step backward,� said A. Andrew Hauk, a senior federal judge in Los Angeles. “Why not just do what the Arabs do, chop off their fingers or bite their tongue out? What on Earth do they want us to do? Treat everybody the same. How can you do that if you’re a human being?�

In fact, it was a widespread perception that subjective considerations played too great a role in punishing criminals that first prompted bipartisan calls for federal sentencing reform in the 1950s.

After a series of hearings and legislative proposals on the issue in the 1970s and early 1980s, Congress in 1984 adopted a comprehensive crime bill that, among other things, created the sentencing commission and delegated to it broad authority to “review and rationalize� the federal sentencing process.

“The commission’s empirical research confirmed that unwarranted disparity is a troublesome and unjust reality in the federal system,� said Andy Purdy, a staff member for the U.S. Sentencing Commission.

The commission examined past sentences meted out for four typical federal crimes--bank robbery, fraud, bank embezzlement and heroin trafficking--and found differences of as much as nine years in the length of sentences imposed for nearly identical offenders.

Study of Criteria

Moreover, commission analysts found variations based not only on factors such as previous criminal records, level of culpability compared to other defendants charged and the use of violence, but on criteria that are not supposed to play a role in a judge’s sentencing decision: race, sex, marital status.

Female bank robbers were likely to serve six months more than men convicted of similar crimes. Blacks in the south served more than a year longer than similarly situated bank robbers in the northwest. In fraud cases, women, married people or those living with a partner were treated more favorably than single people.

Sentences for nearly identical bank robberies ranged anywhere from straight probation to 8 years.

“I think the courts have essentially themselves to blame,� Robert C. Bonner, U.S. attorney in Los Angeles, said of the new guidelines. “Essentially, the impetus for the sentencing commission and the guidelines more than anything else was the substantial disparities that we have had in the federal criminal system.�

Even in Southern California, he said, it is “well known� that sentences handed down in San Diego courts are much stiffer than those in Los Angeles, and sentences in Los Angeles vary widely from judge to judge.

Cheers and Moans

“I’ve seen criminal defense attorneys and the defendant hug each other when Judge X is drawn, and I’ve heard the groans go out when Judge Y is drawn,� Bonner said.

The new guidelines set up 43 levels of sentences and assign each crime to one of those levels. The sentencing range within each level is narrow--providing a maximum of 25% differential between the upper and lower ends--and a variety of both mitigating and aggravating factors are spelled out for each crime that may either escalate the sentence or lower it.

The sentence for air piracy, for example, is set at Level 38, which has a basic range of 235 to 293 months for defendants with no previous criminal record.

However, if a death resulted from the hijacking, the sentence automatically escalates to level 43--life imprisonment.

Bribery is a Level 10 offense--6 to 12 months for first offenders--but goes up eight levels to 27 to 33 months if the bribe was for the purpose of influencing an elected official and may go even higher if the bribe was more than $2,000.

Mitigating factors--such as an individual’s cooperation with the government in ongoing investigations--may serve to lower the sentence level.

Judges are permitted to deviate outside the sentencing range, but only in cases they can prove are not covered by the guidelines and only if they provide written reasons for doing so. Both the government and the defendant can appeal sentences that fall either below or above the guidelines.

That alone is expected to lead to a significant workload increase for the nation’s appellate courts, which until now have heard sentencing appeals only in cases where a defendant believes he has been illegally sentenced.

In addition to reducing the instances in which offenders receive straight probation and increasing some penalties, particularly in the area of white-collar crime, the guidelines ensure that those sentenced to prison will serve their entire sentence behind bars by eliminating the federal parole system, under which convicts were eligible for release after serving as little as a third of their assigned sentence.

“One of the purposes was to provide honesty in sentencing,� Commissioner Nagel said, “and that occurs in part because the sentence the judge now pronounces will be the sentence served.�

Called Too Structured

But critics say the guidelines are too mathematically structured to ensure justice.

“What appears to be clear is that they are Byzantine in their application,� said Richard Kirschner, chairman of a panel of defense lawyers who handle indigent cases in Southern California. “They’re basically trying to fit square pegs into round holes, and I think at least for the first year you’re going to see utter chaos in terms of their application.�

Many defense lawyers and prosecutors predict that sentencing hearings will become time-consuming “mini-trials� in which both sides present evidence about what mitigating and aggravating factors ought to be taken into account.

U.S. District Judge Alicemarie Stotler, who will be responsible for training her 31 fellow judges in Los Angeles in the new guidelines, said the standards do provide judges room to take into account a wide variety of sentencing considerations.

“Basically, everything that we take into account in sentencing people now is factored into the new guidelines,� she said.

Nagel says characteristics of individual defendants are an important part of the guidelines, but she also said that, in part, they are tailored to the crime, not the criminal.

“I think we all feel compassion when we have a defendant in front of us, and that is a good thing, but on the other hand, the victim should also be there, but he isn’t,� she said.

Defense lawyers have been widely critical of the guidelines, both because of the increased penalties--mandated in large part by adoption of new drug and career-offender laws--and because they say the guidelines will transfer a large share of power in the judicial process to the prosecution.

By deciding what charges to file against a defendant, the Justice Department will be effectively deciding what sentence the defendant will receive, said Jan Lawrence Handzlik, a prominent Los Angeles defense lawyer.

As a result, defense lawyers will engage in active “charge bargaining� before indictments are returned but will be less likely to plea bargain, meaning more time and expense to conduct criminal trials, Handzlik said.

Currently, about 87% of all criminal cases are settled by plea bargaining.

“If you’re going to receive a certain number of years no matter what you do or what you bargain, it reduces the incentive to plea bargain, because discretion will be taken away from the judges,� Handzlik said.

Prosecutor’s Viewpoint

Bonner agreed that the guidelines “will have a very definite effect on how we charge cases and how we dispose of cases by plea agreement.�

“Right now, we are with very few exceptions simply not involved in sentence bargaining,� he said. “This directly involves us to a very real extent in setting the sentence in terms of how a case is pleaded.�

Sentencing commission officials say the guidelines still provide incentives for plea bargaining by reducing sentences for criminals who have admitted culpability and who are willing to cooperate with the government.

But in any case, longer prison terms and fewer offenders released on probation will mean trouble for the nation’s prison system, already operating at 156% of capacity.

The sentencing commission concedes that the prison population will grow from its present level of 42,000 inmates to as many as 156,000 by the year 2002, but contends only about 10% of the growth is due to the guidelines, with the remainder due to the new tougher drug and career-offender laws.

Nevertheless, it is a problem that all parties in the judicial process must face, argues Scott Wallace, legislative director for the National Assn. of Criminal Defense Lawyers.

“Something’s got to give,� he said. “It can give through some sort of inevitable agreement to circumvent the guidelines, it can give through Attica-type bloody riots, it can give through the commission deciding that they’re wrong and you can’t lock all these people up, it can give through the courts, saying this is unconstitutional to have this many people in one jail cell. But it’s got to give, and it’s not a question of when, it’s just a question of how.�

Although some judges and lawyers are predicting mass confusion when the guidelines take effect on Monday--Congress earlier this month voted down a request by several members of the commission, the American Bar Assn. and the U.S. Judicial Conference to delay implementation for nine months--an agreement has been struck to apply them only to crimes which occur after Monday.

As a result, fewer than 1,000 cases will go before the courts for sentencing during the first four months, giving judges and lawyers time to become familiar with the guidelines, said U.S. Rep. Daniel Lungren (R-Long Beach), who led the effort to defeat the delay.

In the meantime, sentencing commission officials predict that judges will become less hostile when they learn how the guidelines work.

“I don’t think judges are going to be turned into automatons or computers by virtue of the guidelines,� said Judge Stotler. “I think they’re going to be easier to implement than we had thought.�

NEW FEDERAL SENTENCING GUIDELINES New federal sentencing guidelines, taking effect this week, are expected to reduce the number of offenders eligible for probation and increase penalties for some crimes, resulting in longer average prison terms and a bigger prison population. At the same time, new laws covering penalties for drug crimes and career offenders will also probably lengthen some terms and add to the prison population.

PERCENTAGE OF FEDERAL DEFENDANTS WHO RECEIVE PROBATION

PROBATION ONLY PROBATION Offense Current Law New Guidelines Current Law Person offenses* 31.4% 14.6% 10.0% Robbery 18.0% 3.0% 8.0% Burglary 64.0% 43.0% 10.0% Property offens es** 60.1% 33.1% 15.2% Drugs 20.8% 5.1% 13.0% Fraud 59.0% 24.0% 18.0% Income taxes 57.0% 3.0% 25.0% Firearms 37.0% 9.0% 15.0% Immigration 41.0% 30.0% 27.0%

WITH PRISON Offense New Guideline Person offenses* 3.1% Robbery 1.0% Burglary 0.0% Property offens es** 17.5% Drugs 1.3% Fraud 20.0% Income taxes 20.0% Firearms 17.0% Immigration 8.0%

* Includes homicide, assault, rape and kidnaping * * Includes embezzlement, forgery, larceny, property destruction, counterfeiting and auto theft

EFFECT ON AVERAGE PRISON TERM

CURRENT LAW FUTURE PRACTICE Prison Time Under Under Career Under New Offense in Months Drug Law Offender Law Guidelines Robbery 44.8 -- 74.1 75.4 Person 37.7 -- 53.3 75.2 Drugs 23.1 48.1 56.8 57.7 Firearms 14.1 -- -- 15.2 Burglary 7.7 -- 9.1 16.5 Fraud 7.0 -- -- 8.0 Property 6.8 -- -- 6.5 Immigration 5.7 -- -- 5.2 Income tax 5.5 -- -- 11.9

PROJECTED GROWTH IN FEDERAL PRISON POPULATION

(Low Growth and High Growth Projections)

1987 1992 1997 2002 Current Law Low 42,000 57,000 61,000 65,000 High 42,000 62,000 78,000 95,000 Under Drug Law Low N/A 67,000 85,000 93,000 High N/A 73,000 108,000 138,000 Under Career Offender Law Low N/A 68,000 89,000 102,000 High N/A 74,000 114,000 150,000 Under New Guidelines Low N/A 72,000 92,000 105,000 High N/A 79,000 118,000 156,000

Source: U.S. Sentencing Commission