Wednesday, September 2, 2015

Popular Misconceptions About Federal Sentencing

Today’s post addresses the huge disparity between popular misconceptions about federal sentencing and reality.  When it comes to federal sentencing, I’ve noticed two attitudinal trends that give me great concern. First, among laypeople, there is a broadly-held misconception that sentences in the federal criminal justice system are too short, too easy and that too many people are released too soon. By contrast, practitioners of federal sentencing – and in this group I include prosecutors, defense attorneys, judges, court staff and probation officers – are so used to the daily imposition of sentences that are dozens of years, if not multiple decades long, that we are completely inured to the inherent brutality of our sentencing regime.

On the topic of broadly-held popular misconceptions, let me correct some of those.  Service of a federal prison sentence is by no means some sort of country club existence.  Federal prison facilities are often older, repurposed buildings. Many are not air-conditioned and all are vastly overcrowded. Although there has been a slight decline in the federal prison population in the last year (following thirty-two continuous years of federal prison population increases), federal prisons are still operating at 40% to 50% over capacity. Although there are some federal prison camps, without fences and where inmates have some freedom of movement, placement in such facilities is generally reserved for inmates who are relatively close to their anticipated release date.  Other federal prisons look as you would imagine prisons would look – high, thick walls, metal bunks, bars, razor wire, communal bathrooms and eating facilities.  Although federal prisons are generally better run and less violent than some state prison systems, inmates are balkanized into race-based prison gangs.

As to sentence length, federal sentences are much, much longer than people generally realize.  Garden-variety federal defendants who have committed non-violent offenses can and do receive sentences of fifteen, twenty, thirty or more years in prison.  Many drug cases carry mandatory minimum sentences of ten years and if a gun was “involved,” a mandatory five year consecutive sentence is added to the ten.  Prosecutors control whether a mandatory minimum applies with their charging decisions and in a drug case, a defendant need not himself have been caught with any drugs or money to receive what is essentially a life sentence.  I once handled an appeal for a drug addict who “hung out” with his dealer and sometimes rode along with him when he made deliveries.  My client was not caught with any drugs or money and the government’s surveillance showed him present for, but not participating in drug transactions. Not understanding the broad reach of conspiracy law, he went to trial and was convicted based on the cooperating testimony of his own dealer.  The dealer received a light sentence and my client was sentenced to thirty-five years in prison. 

This example highlights several problematic characteristics of the federal justice system.  First, federal conspiracy law is very broad. A defendant need not have known every member of a conspiracy or even known what was being done by other conspirators to be convicted. It is enough to agree with one other person (and that agreement can be proven by circumstantial evidence and by inference) to commit a crime, so long as someone does some act in furtherance of that conspiracy.  In my example, my client was deemed to have joined a drug distribution conspiracy (proven by the fact that he “hung out” with his dealer) and his dealer testified to having performed lots of acts in furtherance of his own dealing.  Second, the federal criminal justice system is set up to reward the “snitch.”  If a mandatory minimum sentence applies, a judge can sentence a defendant below that mandatory minimum if the prosecutor tells the judge that the defendant has cooperated and that cooperation has resulted in the investigation and prosecution of someone else. This regime encourages – even mandates – snitching, and defendants are under enormous pressure to lie, shade the truth and implicate other people in order to reduce their own sentences.  Lastly, prosecutors seek and judges impose longer sentences upon defendants who do not cooperate but instead exercise their trial rights.  Because of this significant trial “penalty,” criminal defense lawyers sometimes find themselves counseling defendants whom they believe to be innocent to plead guilty nonetheless.  This is why approximately 93% of federal criminal cases are resolved with a plea.

Lengthy sentences are not only given in drug cases.  I have seen numerous white-collar defendants receive multi-decade sentences.  Such sentences are not limited to perpetrators of Ponzi-type schemes or scams of vulnerable victims.  Prosecutors are increasingly pursuing criminal cases against principals of investment companies (for example, in real estate and oil and gas) where market conditions have resulted in large losses to investors. In spite of the fact that investors were warned that such investments were risky, prosecutors will charge fraud based the post-facto determination that some fact was not disclosed to investors that should have been and that investors would not have invested had they known that fact.  I have seen people charged in public corruption and bribery cases receive multi-decade sentences even when the personal financial benefit the defendant received was minimal.

With regard to the notion that federal inmates are released “too soon,” parole has been abolished in the federal prison system and inmates can earn at most 54 days of good time credit per 365 days served. Thus, a federal inmate will serve at least 85% of the sentence imposed.  This is very different from many state sentencing systems wherein good time credit is granted liberally and inmates may be eligible for release on parole after serving only a third or half of the sentence imposed. 

I have argued before, and argue here again, that sentences for criminal offenses should be “proportional.”  By that I mean that the longest sentences should be reserved for those who commit the worst crimes.  When double-digit sentences are commonplace for virtually every kind of crime, even for first-time offenders, there ceases to be any meaningful way to distinguish among offenses and offenders.  Moreover, when the longest possible sentences are reserved not for the worst among us but for those who exercise their trial rights or refuse to cooperate, we send the message that our criminal justice system values efficiency over truth.

I believe that it is problematic that the general public does not understand the realities of the federal criminal justice system.  Incarceration is very expensive and it becomes more expensive as inmates age.  The lack of public awareness of the ever-increasing length of federal sentences has been exploited by politicians.  It is always a popular vote-earning strategy to support longer sentences for criminals. Politicians will point to some anecdotal story of an offender who was given a light sentence and then went on to commit a heinous crime.  However, given the legitimate public concern about the failure of the federal government to constrain spending, as a nation we should have an honest public conversation about how long sentences really need to be to deter criminality and how much incarceration we can legitimately afford.