Sentencing Dispute

RAY SUAREZ:

The debate over mandatory minimum sentences for some federal crimes is heating up. Last month, attorney general John Ashcroft ordered U.S. Attorneys to report federal judges who issue sentences less strict than mandated by federal guidelines. The memo from the attorney general said, in part, that federal prosecutors must notify the department if a judge has issued a sentence on any grounds that was less than the recommended minimum, and when no prison terms are imposed.

We join the debate now with U.S. District Judge John Martin of Manhattan. He'll take an early retirement this summer because of the limits being placed on judicial discretion. And Mary Beth Buchanan, the U.S. Attorney for western Pennsylvania; she was a member of the Justice Department advisory committee that helped develop the new policy.

Ms. Buchanan, what was Attorney General Ashcroft's motivation in keeping track of which judges are handing down what kind of sentences?

MARY BETH BUCHANAN:

The attorney general was directed, as a result of the Protect Act, to develop policies and procedures for reporting downward departures. Within 90 days of the enactment of the Protect Act, the attorney general either had to report all downward departures to Congress, or the attorney general had to develop a plan of reporting specific downward departures to Congress.

RAY SUAREZ:

And what is a downward departure?

MARY BETH BUCHANAN:

A downward departure, under the sentencing guidelines, is a specific reason that would justify a judge imposing a sentence that is lower than that which is required by the sentencing guidelines. After the guidelines were enacted in 1987, Congress studied those guidelines and the implementation, and determined that downward departures were being given in far greater amounts than was ever anticipated.

RAY SUAREZ:

And Judge Martin, you have expressed some dismay at this. What's the problem? Doesn't the legislature set the guidelines that judges work under?

JOHN S. MARTIN:

No, actually the Congress set up the system that has the guidelines set by a commission of experts. What is happening here is the Justice Department is trying to get around that commission of experts. They talk about Congress having studied this. Congress didn't study it. Representative Feeney, who introduced the amendment that contained this provision said in the Wall Street Journal last week that he didn't draft this legislation; it was given to him by the Justice Department. He simply introduced it.

If the Justice Department was so convinced that their legislation had merit, why did they use a procedure that ducked consideration by Congress? They attached it to the very popular Amber Alert bill so that it wouldn't get full consideration. It was not considered by the full Judiciary Committee in the Senate at all, was barely considered in the House, never reached the floor of the Senate because it was an amendment to a bill that passed in the Senate, it went directly to the Congress committee. So I think the Justice Department by its actions shows that its argument really can't stand the light of day.

RAY SUAREZ:

So you don't feel that there are members of Congress who are dismayed at the number of times that federal judges are passing down less stringent sentences than those called for in the guidelines?

JOHN S. MARTIN:

Well, the original Sentencing Reform Act, the Senate report on that, indicated that Congress anticipated that judges would have the power to depart in cases that fell outside the typical case that would be covered by the guidelines. To say that a group of people in Washington can predict in advance the appropriate sentence to be imposed in 80 percent of the cases that come before the federal court would in my view give them great powers of foresight. Of course, these guidelines are appropriate in a lot of cases. But as Justice Kennedy said in a speech the other day before the American Bar Association, it resulted in a system where we're wasting our resources, the punishments are too severe and the sentences are too long.

RAY SUAREZ:

Ms. Buchanan, any reaction to Justice Kennedy's pronouncements on some of these sentencing regimes?

MARY BETH BUCHANAN:

Well, I think it's important for everyone to recognize that it's Congress's duty to enact a law and to set appropriate punishment for specific offenses, and it's the role of the Department of Justice through the executive branch to enforce the law. And it's the role of the Judiciary to interpret it. And beyond that, I can't really comment further on Justice Kennedy's remarks, but it is apparent that after the sentencing guidelines were adopted, the judges weren't following the guidelines. They weren't imposing sentences that were provided for within the guidelines, and they weren't utilizing proper means to depart.

Judges certainly have the ability, as they always have had the ability, to depart from the guidelines in those cases which truly are unique, and are not within the heartland of the guidelines that Congress enacted. But what we've seen over the last few years, judges have simply been departing for reasons other than those intended by the guidelines and for reasons that have been improper. And it was because of that that Congress enacted this particular legislation through the Protect Act.

And I strongly disagree with Judge Martin's comments that this was legislation that was presented to Congressman Feeney from the Justice Department. Certainly the Justice Department reviewed it and certainly we favored it, but this is legislation which Congress enacted through the process that we had set forth for enacting legislation, and they did it for the specific reason that we're seeing far more departures than were ever anticipated by the sentencing guidelines. And unless…

RAY SUAREZ:

Well, let's talk a little bit more about that term, "guidelines." Are they meant to really proscribe, really set hard and fast boundaries on which sentences are called for in which cases? Or are they meant simply to be a guide to judges as they are considering sentence after hearing a case?

MARY BETH BUCHANAN:

Well, let me give you an example…

JOHN S. MARTIN:

If you look at the legislative history…

MARY BETH BUCHANAN:

…Prior to the sentencing guidelines, if a sentence had a statutory maximum of 30 years, for example, a judge could have imposed any sentence from probation to the maximum of 30 years. So what the guidelines did was created a structure so that every judge in every district around the country would consider the same factors in deciding what type of sentence should be imposed. And this would ensure that sentences across the country, regardless of which individual judge is imposing a sentence, would be uniform, would be fair and would be consistent. And that's the goal of the sentencing guidelines.

RAY SUAREZ:

Go ahead, Judge Martin.

JOHN S. MARTIN:

And built right into that statute was a provision that said that the judges should have the power to depart when there is present factors that were not adequately considered by the sentencing commission. The Senate report indicates that it was not intended to take discretion away from judges. And we keep hearing about the judges departing in this great number of times. We're talking about roughly 10 to 12 percent of the cases. It seems to me that to say that there are 10 to 12 percent of the cases that could not be predicted in advance, is not to suggest that anyone is doing anything that is inappropriate. This has been the unanimous view of Chief Justice Rehnquist, the Judicial Conference, that this is ill-advised legislation.

RAY SUAREZ:

Well, give me an example of the kind of judicial discretion that you support that might cause a judge to sentence out of the guidelines, to "depart." What are the kinds of circumstances that we're talking about?

JOHN S. MARTIN:

Well, let's take a case that I had where a woman was indicted with a group of 15 defendants in a narcotics and gun trafficking case. When she came to plead guilty and was asked what she did, she said, well, somebody came to her house and asked her husband if they could find someone who would provide them with a gun. Her husband said yes. She accompanied them to some other location where somebody else provided the guns. When she finished pleading guilty, I said to the assistant U.S. Attorney, "Is that all this woman did?" He said, "Yes." That was a case where I thought that her minimal participation was so low, that to apply a guideline to her that would cause her to go to jail for approximately three to four years – when she had two children – just didn't make sense.

RAY SUAREZ:

And in a case like that, Ms. Buchanan, you'll want to know when a judge departs, why? If they, in their discretion, feel that there's been a mitigating circumstance that wouldn't call for the use of the guideline sentence?

MARY BETH BUCHANAN:

Well, a judge has many options available in sentencing. In that particular example that Judge Martin gave, the judge would have had an opportunity under the guidelines to give this female defendant a reduction for minor role in the offense. And that would have greatly reduced the sentencing guideline range that she would have been facing. Then the court could have considered other issues, such as whether she committed this crime while under duress. And those are still things that a sentencing judge can take into consideration in imposing an appropriate sentence.

JOHN S. MARTIN:

But the guidelines specifically provide that the judges should depart when there are situations that are outside the heartland of cases. This is exactly what Justice Kennedy said in the leading decision in this case, in the Coon case. He said, "The job of the district judge is to compare the facts before the judge with all those other cases coming within this guideline, and make the judgment whether this is a typical case to which the guideline should apply. And if not, the guidelines require the judge to depart."

This isn't the judges doing something that is outside the guidelines. And indeed there is appellate review. So they… not all the judges are going to make the right decisions all the time, but there is appellate review.

MARY BETH BUCHANAN:

In the example…

JOHN S. MARTIN:

If the government believes a sentence is inappropriate, they can appeal it. The case I gave you, the government did not appeal the sentence I imposed.

RAY SUAREZ:

Go ahead, Ms. Buchanan.

MARY BETH BUCHANAN:

Yes, in the example that Judge Martin just gave, there is absolutely nothing in the Protect Act that would prohibit a judge from taking that action if the judge deems it to be appropriate. The judge is still permitted, if he or she believes that a case falls so far outside the heartland, to set forth the judge's specific findings as to why he believes this to be true. And then if the judge does that, and the government appeals, because it disagrees, an appellate court will have to decide, based upon a review of what the judge did and the law, and determine whether it's appropriate.

And I think that what some judges have objected to is that if certain judges repeatedly give downward departures that are improper or illegal under the guidelines, prosecutors will report these particular departures and will most likely appeal those, because it will be a magnitude that is going to affect the cases in that district. If you see the same pattern of conduct occurring over and over again, and if they are illegal sentences, those are exactly the type of sentences that we will report, and those are most likely the sentences that we'll appeal.

RAY SUAREZ:

"Illegal sentences," Judge, what do you make of that phrase? I mean is this…

JOHN S. MARTIN:

This is a problem that doesn't exist. There were 55,000 sentences reported… imposed by federal judges in the last fiscal year. The Justice Department appealed 50 of them. So we're talking 50 out of 55,000, where there was an appeal. I think in most of those appeals, the government did not prevail.

MARY BETH BUCHANAN:

The cases that we will be reporting, we'll report those cases to the Justice Department and we will consult with the solicitor general as we always have in deciding which of those cases that we'll appeal. And certainly we will decide to appeal those departures that are of a more significant magnitude or possibly those departures that recur, possibly by one particular judge or maybe departures that we see frequently within a particular district.

RAY SUAREZ:

Well, Judge, you've already announced you're leaving. What will the judges you leave behind face as a modified changed landscape because of the action that Ms. Buchanan just described?

JOHN S. MARTIN:

Well, unfortunately, the action is much more than she has described because they've also directed the sentencing commission to reduce the grounds for departure, which I think is an absolute mistake. We are currently incarcerating for far too long too many low-level violators who should not be in prison for the length of time. Seventy percent of people in federal prison are serving sentences of more than five years, although 60 percent of them are serving in low-level or minor-level facilities. So these are people who are not dangerous, serving sentences that are far too severe, and what the Justice Department is trying to do is to reduce the ability of the judges to impose sentences that are just in the particular case before them.

RAY SUAREZ:

Ms. Buchanan, Judge Martin, thank you both.

JOHN S. MARTIN:

Thank you.

MARY BETH BUCHANAN:

Thank you.