Are The Federal Sentencing Guidelines Relevant?
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When the U.S. Congresss established the U.S. Sentencing Commission as a permanent, independent agency within the judicial branch of the U.S. goverment, they probably had some good intentions for doing so. In 1984, the commission created the Sentencing Reform Act of 1984, which was meant to impose a fair way of sentencing federal prisoners that was more uniform. Why should a person in Georgia get a much different prison sentence than a person in California for essentially the same crime. It made sense at the time, but current cases demonstrate that the systems is neither fair, nor uniform.
One of the first injustices associated with federal sentencing guidelines was demonstrated in 1984, when Jamie Olis, an employee at Dynegy, was sentenced to 24 years in prison for his part in a financial fraud that was driven by the dollar amount of the fraud, stated as over $300 million. Despite Olis' subordinate role in the crime, and the fact that others had made plea agreements, Olis took his case to trial, lost and was sentenced to the 24 years in prison in accordance with the point-based system of the guidelines. U.S. District Judge Sim Lake said at the sentencing, "I take no pleasure in sentencing you to 292 months, but my job is to follow the law." One would have needed a calculator to determine the number of years of that sentence. Off he went to prison for a $300 million fraud, though Olis' actual take was a salary of $162,000 and a bonus of $110,000. Two years later, an appeals court overturned the sentence and the Supreme Court loosened its approach to the guidelines by stating they were just that, "a guide". Olis's sentence was reduced then to 6 years in prison. Still a good hit. It should be noted, that Olis's boss, who cooperated and was a more key figure in the fraud, received only 15 months in prison. Boy it helps to cooperate.
A look at the case of Jack Abramoff had a similar outcome. Abramoff, who pled guilty in a high-profile political corruption case involving bribery of political figures, was sentenced to 6 years in federal prison. One of his co-conspirators in a related case was Kevin Ring, a lobbyist for Greenberg Traurig, who decided to take his case to trial. After two trials, the first was declared a mistrial, Ring was finally found guilty. The amount of time that the prosecutors wanted to send him to prison was once again based on those guidelines .... they wanted a life sentence for the offense. A judge later ruled that the guidelines should not be applied for the first-time offender Kevin Ring and decided on setting a standard range much lower, around 5 years. In the end, Judge Ellen Segal Huvelle decided to depart from even that and gave Ring a sentence of 20 months and also allowed him to stay out of prison based on his appeal.
But were the sentencing guidelines simply implemented to promote more cooperation with the government rather than to achieve justice. Over 90% of all cases brought against individuals in the federal system result in plea agreements. In fact, some legal scholars have argued that if everyone accused of a crime were to demand a jury trial then it would crash the American justice system. Nobody would go to jail....Occupy The Courtroom movement.
I covered the Sky Capital trial of Ross Mandell last summer. When the government calculated the points that were to be used to calculate the prison sentence for Mandell, they came up with 47 points .... the guideline chart only goes up to 43 points and the sentence was stated as "LIFE" for this first time non-violent offender. When the probation office looked at Mandell's life of service, family situation and standing in the community, they recommended that the sentence should be reduced to 30 years .... pretty much still a life sentence for a 55 year old man with serious health issues.
At Mandell's sentencing in Manhattan last week, the prosecution agreed with Probation's recommendation and further asked the judge, U.S. District Judge Paul Crotty, for the 30 years and for Mandell, who had been free on bond, to be taken into custody immediately whisked off to prison after the sentencing hearing. So Mandell and his family entered the courtroom prepared to say their goodbye's and see him taken away in chains. His two children (8 and 11), waiting at home in Florida, believed they had already seen their father for the last time as a free man. During the proceeding, Judge Crotty had a few questions related to other cases heard by the court in New York, "How much time had Bernard Ebbers (WorldCom) received?" ... 24 years. "How much time had Raj Rajaratnam (Galleon) received?"....11 years. "How much time had Marc Dreier (Dreier, LLP) received?" .... 20 years. Crotty's decision was to sentence Mandell to 12 years in prison....apparently drawing his decision more on comparison of other cases rather than some quasi-sentencing guideline.
During April, the U.S. Sentencing Commission adopted amendments to recommend even higher criminal sentences for individuals convicted of certain types of insider trading and certain types of financial fraud. Why? Nobody is paying any attention to the guidelines they already established .... and for good reason. Judges, with all their power, still determine prison sentences. Guidelines, as useless as they are, are for politicians to hang their hats on for the benefit of their constituents.
