Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  In the eighteenth century, Blackstone foresaw temptations that now afflict the United States. Expedience may induce “secret machinations, which may sap and undermine” the jury trial, he warned, “as doubtless all arbitrary powers, well executed, are the most convenient.” He noted that “delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters.”

  For the sake of convenience, the jury trial in America is close to extinction. Only 3 percent of federal and 6 percent of state convictions result from trials, pleasing most prosecutors and judges who push to avoid clutter on the dockets.1 They collaborate in punishing those who insist on their rights, producing federal sentences five times higher after a jury conviction than after a guilty plea. “When I started practicing in the early seventies, I’d be in trial every four to six weeks,” remembers Barry Portman, federal public defender in San Francisco. “You can go years now without a trial.”

  Pragmatism and efficiency are prized. Yet they go unmentioned in the Sixth Amendment, notes Timothy Lynch of the libertarian Cato Institute, who argues that it’s unconstitutional to bribe or threaten citizens into forfeiting their liberties—akin to what happens when the government presses for guilty pleas. “The Framers of the Constitution were aware of less time-consuming trial procedures when they wrote the Bill of Rights,” he observes dryly, “but chose not to adopt them.”2

  “We simply don’t have the resources to prosecute everything,” countered an assistant U.S. attorney on the West Coast, so “there is a lot of discretion on the prosecutor’s part, which is good and makes the job attractive. When you speak to kids out of law school, everybody wants to be a public defender, but you can arguably have more effect on doing justice as a prosecutor because there is so much discretion.”

  The discretion makes justice an elastic concept. It includes the choices not to prosecute or to charge less severely—or even to throw a case, as Daniel L. Bibb conceded that he had done as an assistant district attorney in Manhattan. In 2005, he developed doubts about the guilt of two young men convicted of killing a nightclub bouncer fifteen years before. Although ordered to defend the convictions at a hearing on newly discovered evidence, Bibb dug up exculpatory witnesses and tempered his cross-examinations. As a result, one man was released, the other retried and acquitted. He said, “Prosecutors are supposed to seek justice, not victory.”3

  Many guilty pleas mix justice and victory, but they also snuff out jury trials and rely on a mechanism that is hard to admire. The assistant U.S. attorneys who prosecute federal cases, and the district attorneys who do so at the state and local levels, have had their hands strengthened by laws that entangle judges in webs of sentencing requirements. These have come either in the form of mandatory minimums imposed by legislatures for certain crimes and for “habitual offenders” or through detailed sentencing “guidelines,” a euphemism for a rigid system that prevailed for two decades. Until the Supreme Court changed them in 2005 from mandatory to advisory, the “guidelines” were not suggestions, as the word implies, but inescapable restrictions that practically imprisoned sentencing judges in little boxes on a grid.

  Composed by about half a dozen judges and former prosecutors and defense attorneys on the United States Sentencing Commission, the federal guidelines are contained in a five-pound volume of some six hundred pages that leave little to the imagination. They tell the courts where on a sentencing table to locate the case: in one of 258 cells formed by the intersection of a vertical column of 43 offense levels relating to the severity of the crime and its circumstances, and a horizontal row of 6 criminal history categories based on the defendant’s prior convictions. Many states have similar systems.

  While some judges chafe at them, others find them helpful, even comforting. The variations of a criminal’s act can be intricate, the law has grown complex, and the particulars of a perpetrator’s background may be ambiguous. Meshing these components to arrive at a sentence is easier when they are quantified and put into a matrix. Was it really better before 1984, when a judge could use nothing more precise than gut instinct to pick a prison term within a law’s broad range, say, of zero to forty years?

  To examine the question, Judge Paul L. Friedman went behind his desk to a small bookshelf and removed a copy of the guidelines, bound in slick white paper. He was a slim man with large glasses and a calm, even demeanor, highly respected in the federal district court in Washington, D.C., where he presided over trials, ruled on constitutional challenges, and imposed sentences. His handsome chambers had an inspiring view of the gleaming dome of the United States Capitol.

  He opened the volume to the section on embezzlement, chose the amount of $1 million, figured an offense level of 22, assumed a defendant without a criminal record, then turned to the inside back cover, where the sentencing table was printed. Running his finger down criminal history column I to level 22, he came to a box showing a sentence of forty-one to fifty-one months. “Can I do a better job picking a number?” he asked. “No individual judge is better equipped to pick a better number. Can I say that’s not the right number to deter other people or deter him?”

  Yet he struggled against certain sentences required by both guidelines and statutes, particularly the hundred-to-one disparity between the crack and powder forms of cocaine. Enacted by Congress in 1986, the law required a five-year minimum for possessing 500 grams of powder but merely 5 grams of crack, and a ten-year minimum came with 5,000 grams of powder and only 50 grams of crack.

  Since crack was favored by blacks and powder by whites, prison terms hit blacks disproportionately. Driven by myths that crack induced more dangerous behavior than powder, the disparity played to long-standing stereotypes and racial fears of crack-induced murder and mayhem among African-Americans. It imprisoned low-level street sellers of crack longer than larger traffickers of powder.

  One of those, Robert Harris, came before Friedman for sentencing. Arrested at age twenty-one for possessing 68.9 grams of crack, he faced the ten-year minimum, although he had no prior convictions. A young high school dropout, he had worked at low-wage jobs and earned his GED. The crack put him at level 32, or 121 to 151 months, the judge noted, while if the cocaine had been in powder form, the level would have been at 16, for 21 to 27 months.

  “In crack-powder cases,” Judge Friedman observed later in chambers, “I said to my defendants: ‘The sentence I’m about to impose is unfair, but I’m forced by Congress to do it.’ ” He was not the only judge to apologize for a sentence the law required.

  Gerard E. Lynch, a federal judge in Manhattan, called “unjust and harmful” the ten-year prison term he was bound to give Jorge Pabon-Cruz, convicted of advertising and transmitting child pornography on the Internet when he was eighteen, a freshman studying computer engineering at the University of Puerto Rico.

  Using the screen name BigThing, the young man was spotted by a New York detective monitoring a chat room. He had no contact with the children shown performing sexual acts, and he did not create the images, but he sent about 11,000 of them, violating a tough law enacted in 1996 and signed by President Bill Clinton. Judge Lynch, a former federal prosecutor himself, took unusual steps to navigate around the long sentence, The New York Times reported. “I have some difficulty imagining that ten years in prison is going to do either him or society much good,” he declared in a hearing.

  First, he tried to get federal prosecutors to bargain down the charges in a plea or reduce them unilaterally, but they refused. Then, during the trial, he proposed including the fact of the ten-year sentence in his instructions to the jury, a ploy quickly appealed by the prosecution and blocked by the Second Circuit as “a clear abuse of discretion.” Juries are supposed to convict or acquit on the evidence of the crime alone, not on the penalty, but Lynch reasoned that “we have jurors and not technicians” so they can “act on their conscience,” and “jurors’ consciences cannot operate if they have no idea what is at stake.
” They did not hear about the required ten years, and they found him guilty.

  Had the young man been convicted of having sex with a twelve-year-old, the judge noted, the sentence would have fallen to about five years. “This leads me to the rather astonishing conclusion that Mr. Pabon-Cruz would have been better off molesting a child.”4

  In Utah, the federal judge Paul G. Cassell was so distressed at having to sentence twenty-four-year-old Weldon Angelos to fifty-five years in prison for his first offense that he took the rare step of urging the president to grant clemency. Angelos had been caught selling eight ounces of marijuana three times to an informant, but the key element in the mandatory sentence was the fact that he had carried a pistol with him twice and that guns had been found in a subsequent search of his home, along with three pounds of pot. He hadn’t used his weapons, but possessing them in connection with drug trafficking was enough to mandate five years on the first count and twenty-five years for each additional count.

  Angelos was clearly a dealer, and Cassell was advocating more than a slap on the wrist, but not more than the eighteen years recommended by the jury. He urged that the president commute the jail term to that level and that Congress revise the law. The longer term, he said, was “far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape. It exceeds what recidivist criminals will likely serve under the federal ‘three strikes’ provision.” He continued in a tone of regret: “The court can set aside the statute only if it is irrational punishment without any conceivable justification or is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment. After careful deliberation, the court reluctantly concludes that it has no choice but to impose the fifty-five-year sentence. While the sentence appears to be cruel, unjust, and irrational, in our system of separated powers Congress makes the final decisions as to appropriate criminal penalties.”5

  Yes, but a case can be made that Congress has undermined the separation of powers by shifting immense authority from the judicial to the executive branch. In many areas of government, including criminal justice, the healthy equilibrium has been lost.

  A partial correction was made by the Supreme Court in a pair of decisions that reinstated judges’ sentencing powers, although the rulings have had more sweeping impact in principle than in practice. In 2004 and 2005 the Court determined that state and federal guidelines, respectively, could not be mandatory, for they calculated prison terms based on facts not proven to a jury, merely asserted persuasively by the prosecution in a sentencing process.6 Rather than discard the federal guidelines entirely in the 2005 case, United States v. Booker, the Court retained them as a starting point for judges who “must consult” the rules and “take them into account.”

  This twin result came from two unusual coalitions, each mixing strange liberal and conservative bedfellows and sharing only one member in common: Justice Ruth Bader Ginsburg. One group of five found that the guidelines violated the right to trial by jury, the other group of five judged them constitutional if they were not mandatory, a position urged by Justice Stephen G. Breyer, who had been a strong advocate of sentencing guidelines as a counsel to the Senate Judiciary Committee during the 1970s and, later, a member of the Sentencing Commission.

  Saving the guidelines with the “advisory” remedy disappointed defense attorneys who thought the Court had given with one hand and taken with the other. They have been proved both right and wrong. Booker tilted authority back to judges somewhat, encouraging public defenders in D.C., for example, to avoid plea agreements with the government, advise their clients to plead guilty to the indictment alone (called an open plea), stipulate to no further facts and sign no waivers, and take their chances with the judge. Sentences have drifted downward, according to A. J. Kramer, federal public defender there, and judges who depart from the guidelines have mostly gone lower, not higher.

  Some judges now require that facts presented to enhance sentences be proven beyond a reasonable doubt, the standard required for juries to find guilt. In many other sentencing hearings, however, the lesser test—a preponderance of evidence, or a 51 percent probability that an allegation is true—remains enough for judges to raise levels on the grid.

  The guidelines benefit from strong institutional momentum, in both the Justice Department and the federal judiciary. All federal appellate courts have told judges to start with the guidelines, which is also what federal prosecutors invariably argue for. Regional differences in sentencing have continued as before, but prison terms for first-time offenders have spread out more widely, both above and below the prescribed guideline ranges.7 The defense has a better shot at a reduction than before. “There’s far more leeway to make arguments that formerly were to no avail,” said Kramer.

  One of the arguments was on the crack-powder disparity. After Booker, Judge Friedman took the unusual step of inviting Kramer to write an amicus curiae (“friend of the court”) brief in two crack cases, and the judge used the arguments to sentence lower than the guidelines, as other federal judges around the country were beginning to do. One case involved Robert Harris, whom Friedman reasoned down to below the minimum; he was released from federal prison just under four years following his date of arrest, instead of the ten years he would have received otherwise.8

  Reflected by Booker, the climate on rigid sentencing shifted, and arguments long advanced by the Sentencing Commission for collapsing the crack-powder differences began to take hold. Its recommendation for equivalence in 1995 had been resisted by the Clinton Justice Department and blocked by both houses of Congress. In 2002 and 2004, the commission recommended reducing the disparity to twenty to one, and in 2007 the commission lowered the crack penalties by two levels, or about sixteen months, and then made the reduction retroactive so that some 19,500 inmates sentenced previously could petition the courts for early release.9 Congress finally moved in 2010, reducing the ratio to eighteen to one.10

  Meanwhile, the Supreme Court in 2007 had upheld a judge’s below-guideline sentence for crack, a partial return of discretion to the trial courts.11 Still, according to Friedman, judges had no cause to celebrate their liberation from the sentencing guidelines. “We’re not free at last, free at last, I can do anything I want to. We’re not that free. I don’t agree that the guidelines are presumptively the best way to go,” but “my pattern has been to go with the guidelines in most cases.”

  After Booker, he said, the Bush Justice Department was “taking names” of judges who departed downward, creating concern that Congress might be provoked into toughening statutory minimums for certain crimes. “Some judges have said that judges feel intimidated,” Friedman noted. “It’s very hard to say that someone who holds a lifetime appointment is intimidated. But I do think we’re cautious, because we don’t want Congress to take this discretion away, which they may do anyway.”

  THE PLEA BARGAIN

  Since the Guidelines Manual remains the bible for federal prosecutors and the presumptive framework for judges, it is worth looking closely inside to see how it affects the dynamics of power in the criminal justice system.

  The text is relentless in its detail yet malleable in the prosecutor’s hands. Say you forget to leave your favorite Swiss Army knife or handgun at home when you go to the airport. When it’s discovered by security, officials could just confiscate it, or they could turn you over to the local U.S. Attorney’s office for possible prosecution. Here, from the guidelines with inserted explanations in brackets, is what you’d be facing:

  § 2K1.5. Possessing Dangerous Weapons or Materials While Boarding or Aboard an Aircraft

  (a) Base Offense Level: 9 [For someone with no criminal record, this means 4–10 months of probation or prison.]

  (b) Specific Offense Characteristics

  If more than one applies, use the greatest:

  (1) If the offense was committed willfully and without regard for the safety of hu
man life, or with reckless disregard for the safety of human life, increase by 15 levels. [This would take it to level 24: with no criminal record, 51–63 months in prison.]

  (2) If the defendant was prohibited by another federal law from possessing the weapon or material, increase by 2 levels. [This would raise it to level 11: with no record, 8–14 months in prison or a mixture of jail and probation; with the heaviest criminal background, 140–175 months in prison, no probation. Those barred from gun possession include convicted felons, the mentally ill, those with dishonorable military discharges, and those convicted of misdemeanors involving domestic violence.]

  (3) If the defendant’s possession of the weapon or material would have been lawful but for 49 U.S.C. § 46505 [prohibiting guns and explosives in passenger compartments], and he acted with mere negligence, decrease by 3 levels. [This would reduce it to level 6: with no criminal record, 0–6 months, all of which can be on probation.]12

  A couple of the variables are clear-cut: either you are or you are not legally permitted to possess the weapon off an airplane. But item (1) and part of (3) are subject to interpretation: an assistant U.S. attorney, possibly not long out of law school, might have the leeway to read the evidence one way or another to place you in the category of either “mere negligence” or “committed willfully,” the difference between zero to six months, on the one hand, and four or five years, on the other.