The Justice Department thinks that mandatory minimum sentencing laws have placed a strain on the federal penitentiary system, disparately impact demographic groups and result in undue leniency for white collar crimes and some child exploitation offenses.
But there isn’t much support in Congress or within the federal criminal justice system for a structural change of federal sentencing, a Justice Department representative told the U.S. Sentencing Commission at a hearing on Thursday morning.
U.S. Attorney for the Northern District of Georgia Sally Quillian Yates testified on behalf of the Justice Department. In her prepared testimony, Yates noted that DOJ’s Sentencing and Corrections Working Group, chaired by Acting Deputy Attorney General Gary Grindler, has involved over 100 officials from across the Justice Department.
Pressed by members of the commission, Yates would not say which of the 170 mandatory minimums the Justice Department did not believe were necessary. She said the department’s position was that the commission should recommend to Congress which statutes should be revised, but said the DOJ would be happy to work with the commission.
“This is the starting point and not the ending point,” said Yates.
The Justice Department believes the commission should do a statute by statute analysis of the 170 federal sentencing guidelines, and that DOJ employees were ready to “roll up their sleeves and work with” the commission, said Yates.
Yates also touted a memo sent to federal prosecutors last week that gave prosecutors more flexibility in making charging decisions and deciding on recommended sentences in criminal cases.
Asked by a commissioner whether the Holder memo could create greater disparity between sentences for the same crime because it gave prosecutors more flexibility, Yates said she did not think it would. “It places the responsibility on federal prosecutors to consider the specific circumstances of the case when making the determination as to what to charge,” she said.
Yates said that the Northern District of Georgia was facing a number of challenges. It has experienced more bank failures than any other district, has a growing gang problem and one of the highest rates of mortgage fraud and is the number one district in the exportation of illegal firearms, she said. She said Northern Georgia has become the East Coast hub for Mexican cartels. “Miami now gets its dope from us,” Yates said. Those challenges have forced the U.S. Attorney’s office to make difficult decisions about how to allocate resources.
The American Civil Liberties Union’s Jay Rorty testified that the mandatory minimums “create excessive prosecutorial discretion, which is exercised in an arbitrary manner and used to coerce defendants into relinquishing their constitutional rights and punish defendants when they exercise those rights.” He acknowledged that Congress is unlikely to taking action to change mandatory minimums.
“Although we believe the correct policy choice is clear, we understand that good policy and good politics do not always align, and that Congress may not yet be prepared to abolish all federal mandatory minimums,” Rorty said.
A representative of the Fraternal Order of Police testified in support of mandatory minimums, which he said been an effective deterrence for crimes. An American Bar Association representative testified that sentencing by mandatory minimums “is the antithesis of rational sentencing policy.”
The U.S. Attorney for the Northern District of Alabama told members of the U.S. Sentencing Commission that she is concerned about light sentences that the district’s judges are handing down in white-collar cases, The Birmingham News reported.
Joyce Vance said, according to The News, that the district’s judges usually use their discretion in sentencing wisely, but she said that lighter sentences in white-collar cases are “especially troubling.”
Vance, who was sworn in to the job Aug. 27, appeared last Friday in Austin, Texas, at a regional public hearing of the Sentencing Commission. The panel is holding a series of hearings to mark the 25th anniversary of the Sentencing Reform Act, which created the guidelines judges use in crafting sentences. “We have noticed an increasing number of below-guidelines sentences in white-collar cases,” Vance told the commission, according to the Birmingham newspaper.
She added: “A potential white-collar thief could reasonably conclude that fraudulent conduct in the Northern District of Alabama is actually cost-effective.” She said the 2005 Supreme Court’s ruling in United States v. Booker — which made sentencing guidelines recommended, but not compulsory — might be having unintentional effects by establishing contradictory sentences, according to the newspaper.
Vance, in an interview with The News, cited a order by the 11th Circuit Court of Appeals directing the district court for the Northern District of Alabama to re-sentence former HealthSouth executive Ken Livesay in an accounting fraud case. U.S. District Judge Karon Bowdre sentenced Livesay to five years’ probation in 2008 after the circuit court overturned two previous sentences of five years’ probation, The News said.
The district judge gave Livesay leeway because of time the former executive served during his original probation sentence, which he received in 2004, according to the newspaper.
“I believe Booker has made sentencing less uniform and thus less predictable for prosecutors and defendants alike,” Vance said in her testimony to the Sentencing Commission, according to The News.
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U.S. Attorney Patrick Fitzgerald said today there seems to be a “striking dissonance” in the way federal district judges and prosecutors approach sentencing in child pornography cases. Perhaps judges tend to be lenient because they have more contact with defendants, Fitzgerald suggested. Prosecutors, on the other hand, may seek harsher sentences because they’ve worked closely with victims, he said. Fitzgerald, of Illinois’ Northern District, made his remarks during a regional hearing of the U.S. Sentencing Commission in Chicago.
From his prepared statement:
Stated as neutrally as possible, this subject area is one where district judges seem to vary the most and seem to get most frustrated with the government seeking a sentence within the guidelines range. It is also the same area where the AUSAs handling these cases privately express the most frustration with the views of the sentencing judges. One could posit that perhaps the judges are more lenient because they have less personal contact with the victims and see things more through the lens of the defendant standing before the judge for sentencing. Alternatively, one could posit that AUSAs may seek harsh sentences because they see the case most heavily through the lens of the victims, who have suffered much and to whom they often become very close. Along the same lines, the prosecutors have little or no interaction with the defendant.
Fitzgerald said all the issue required study from all parties involved. He also defended guidelines and mandatory minimum sentences triggered in gun and drug cases. After the Supreme Court’s 2005 decision in U.S. v. Booker, which made sentencing guidelines advisory, prosecutors need the mandatory minimums to leverage cooperating witnesses, Fitzgerald said.
Fitzgerald is part of a Justice Department working group studying sentencing policy. Members are examining empirical data on sentencing, and prosecutors in the field are comparing practices. The group will prepare a report for Deputy Attorney General David Ogden and Attorney General Eric Holder.