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.
