Law and Politics

Opening Sentences

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Karen Marie Shook never had met William G. Milliken until just a few months ago. But Milli­ken already had profoundly touched Shook’s life twice.

As Michigan’s Republican governor, Milliken in 1978 signed in­to law some of the nation’s tough­est mandatory minimum drug sen­tences. The idea was to hammer the big guys at the top of the distribution chain.

Shook, a working single mother of three, hardly fit the profile of a Colombian drug lord. Yet the law in 1993 landed her a minimum of 20 years behind bars for arranging a series of petty cocaine deals for an undercover cop so she could feed her own 3-gram-a-day habit. In all, the cocaine totaled a little less than a quarter pound–about as much as Shook put up her nose in a month’s time.

By 1998, private citizen Milliken had decided he made a huge mistake. Instead of being crammed full of high-rolling kingpins, prisons in Michigan were filling up with thousands of addicts like Shook who peddled just enough dope to stay stoned.

So Milliken became a leading voice to repeal the mandatory minimums, and Shook became the poster child in the campaign. Legislators obliged. As a result, Shook, 44, walked out of prison last spring, 10 years before she would have been eligible for parole under the old law.

The paths of the former governor and the ex-convict finally crossed last October at a dinner celebrating the law’s demise at the hands of a coalition of legislators, prosecutors, defense lawyers, judges and ordinary citizens. The organizers wanted Shook to meet someone.

“I didn’t know who I was being introduced to,” Shook says. “But when he stood up and turned around, I said, ‘I know who you are.’ And he said, ‘I know who you are, too.’ ”

Following Michigan’s lead, dozens of states are taking hard new looks at easing sentencing policies once dedicated to keeping criminals locked up as long as possible. While some state lawmakers cite ballooning budget deficits and overcrowded prisons, Milliken and others involved say the principal motivation behind Michigan’s drug-sentencing overhaul was more fundamental.

“The position I took was primarily a result of a compel­ling sense of justice and fairness,” Milliken says. “We had a system that was just grossly unfair.”

But as the states look for alternatives to long prison sentences, the lock-em-up-and-throw-away-the-key approach is on a roll in Congress. Federal judges still are smarting about getting cut out of the loop last year on a tough new sentencing measure quietly passed amid a frenzy over a popular child abuse bill that contained it.

Supporters say the law is intended to curb what they see as increasingly wimpy sentences handed out by judges in all kinds of criminal cases. Known as the Feeney amendment, it attempts to cut deeply into judicial discretion in sentencing.

The judges, from Chief Justice William H. Rehnquist on down, say the law amounts to nothing more than a backroom attempt to intimidate them. They are especially aggravated with a provision designed to ferret out lenient jurists by allowing Congress and the Justice Department easier access to detailed sentencing information in individual cases.

The typically staid U.S. Judicial Conference has called for the amendment’s repeal, as has the National Associa­tion of Criminal Defense Lawyers. Members of the legal community also are awaiting the ABA’s position as the debate enters a new phase.

After the ABA opposed the original Feeney amendment, President Dennis W. Archer ap­pointed a commission to examine a broader range of sentencing and correctional policies. The panel is expected to present recommendations to the ABA House of Del­e­gates when it convenes in August at the association’s an­nual meeting in Atlanta.

The amendment’s sponsor, Rep.Tom Feeney, R-Fla., says federal judges can expect even more restrictions if they don’t get the message. He has little use for complaints of intimidation. The freshman from the Orlando area says he finds it ironic that he has to tutor the judiciary on basic constitutional law, which not only gives Con­gress the power to define crimes and set penalties but also to create or dissolve any federal court but the Supreme Court.

“Any federal judge who has read Article I and Article III of the Constitution ought to be ashamed of himself for using such ridiculous arguments,” Feeney says. “They are a child of Congress, whether they like it or not. If we wanted to, we could give judges no discretion whatsoever in sen­tencing.”

Talk like that also could cast a shadow over the future of the U.S. Sentencing Commission. The commission is supposed to develop sentencing policies and practices independently so that federal courts can carry out the will of Congress. In practice, however, the commission is anything but independent, says former chair Diana E. Mur­phy, who left Jan. 31 to devote more time to her duties as a judge for the St. Louis-based 8th U.S. Circuit Court of Ap­peals.

“Although the commission is an independent agency with­in the judicial branch, it is truly a junction point where interests of the three branches of government intersect and where a variety of conflicting views must be considered from all those interested in federal sentencing issues,” Mur­­­­phy wrote in her resignation letter to President Bush. The only safe bet is that the feds won’t be taking any cues from states.

State correctional facilities held 90 percent of the nation’s nearly 1.4 million sentenced prisoners at the end of 2002. With a sour economy plunging many state budgets into the red, legislators have looked at alternative forms of sentencing to help reduce overall spending.

In recent years, 25 states have instituted major changes in their sentencing and correctional policies, according to a survey released in November by Families Against Man­da­tory Minimums, a national advocacy group that organized the campaign to repeal Michigan’s sentencing regime. Re­cent changes in other states surveyed include more repeals of mandatory minimums, reductions of penalties for some nonviolent crimes and diversion to treatment for offenders with substance abuse problems.

But budget deficits don’t tell the whole story.

Indeed, while state prison populations increased by 23.6 percent from 1995 to 2002, the federal count shot up by a whopping 71 percent, according to the U.S. Bureau of Jus­tice Statistics. The bureau determined that state prisons were operating between 1 percent and 16 percent over capacity at the end of 2002, while federal facilities were 33 percent over capacity. While states have had to make room for violent offenders, drug defendants and immigration violators are the chief causes of federal prison crowding.

Though federal prisons are more crowded, philosophical differences may better explain the divergent paths taken by state lawmakers and their congressional counterparts. The key components of sentencing policy at issue are guidelines used by the federal government and some states, and mandatory minimums, used in both systems. Guidelines evolved in the mid-1980s to cure disparities in sentencing from region to region, or even from judge to judge. Before guidelines, for example, a federal judge sitting in California may have been far more lenient on a marijuana dealer than a judge sentencing the same defendant in Georgia.

Guidelines aim to bring uniformity and fairness to the system through criteria that try to ensure similar sentences for similar defendants. To further tailor sentences to individual defendants, judges typically have the authority to depart upward or downward from the guidelines in cases with unusual aggravating or mitigating circumstances.

On the federal level, the Feeney amendment restricts judicial discretion by limiting downward departures. Critics say the amendment has made downward departures so difficult that guideline sentences are becoming indistinguishable from mandatory minimums.

At least on paper, mandatory minimums take the opposite approach from guidelines. Most commonly found in narcotics laws, mandatory minimums tie sentences to the quantity of drugs involved without regard to the circumstances of the case. While many criminal laws allow judges to issue concurrent terms for separate counts arising out of the same matter, mandatory minimums often contain “stacking” provisions that force judges to issue consecutive sentences.

Thus, the prosecutor’s charging decision figures heavily into the sentence. For example, Shook received two consecutive 10-year mandatory minimums because Michigan prosecutors charged her with one count each of conspiring to deliver between 50 and 224 grams of cocaine and of actually delivering the same amount.

While the debate on the federal level has been highly partisan, state efforts have been remarkably unified on all levels, garnering support from members of both parties as well as from law enforcement, the bench, prosecutors and the defense bar.

Take Alabama Attorney General Bill Pryor. The Re­pub­­lican is the state’s chief law enforcement officer and a pres­idential nominee for a federal judgeship. Along with other state officials, Pryor is recognized as a leader in securing legislation last year designed to reduce prison populations and introduce a voluntary guideline system that gives Ala­bama judges more flexibility than federal ones.

State Sentencing Commission Chairman Joseph A. Col­­quitt has a quick retort to those who would compare Ala­bama’s effort with the post-Feeney federal guidelines. “Those are almost fighting words,” says Colquitt, who spent 20 years as a state sentencing judge. To be sure, Alabama is embroiled in state and federal litigation over its cramped prisons. But Colquitt insists the state isn’t driven so much by lawsuits or budget worries as it is by finding a system that works properly.

Michigan officials came to the same conclusion after they realized their drug kingpin laws were reeling in way too many offenders like Karen Shook.

Crime and Punishment in Michigan

A native of affluent Oakland County in suburban De­troit, Shook began occasionally using cocaine in the early 1980s. Her use escalated in the 1990s after a romantic relationship ended. She started going out more, hitting the bars. Besides the booze, cocaine always was around. At first, Shook was able to afford the little bit of coke she used and still put food on the table for her kids. She worked as a bank teller at the time, and her employer apparently was none the wiser. “I didn’t look strung out.”

But pretty soon, things got out of hand. Shook was using up to 3 grams a day, which no bank teller can afford at $100 a gram. To support her habit, Shook began setting up small deals for friends and others she met on the scene. One of those was a guy named Kenny. He had long hair, wore a baseball cap and seemed OK.

Beginning in November 1992, Shook set up three buys for Kenny, one for 7 grams and two more for 14 grams each. In late December, Kenny wanted to score bigger and asked for 70 grams, or about 2 1⁄2 ounces. Shook and her connection arranged for Kenny to meet another dealer in a parking lot. Shook recalls waiting in her car as the deal went down.

“Cops started coming from every direction,” she says. “I was put on the ground with a gun to my head, and I was arrested.”

Kenny turned out to be an undercover deputy sheriff. Though she was in a jam, neither Shook nor her family figured she would go to prison. That was until her court-appointed lawyer told her she was facing a mandatory mini­­­mum of 10 years for each charge. Pleading guilty and hoping for probation was no option.

“They told me I had no choice but to take it to trial,” Shook says. “A big bright light came on. I had a horrible feeling in the pit of my stomach. Life drained out of my body.” Shook was nailed. The bust was solid. An entrapment defense was out of the question. Her lawyer advised her to take the stand and tell the jurors the story of an addiction so commanding that it forced her to deal. Though the arresting officer testified that Shook appeared to be an experienced dealer, he also told jurors Shook’s heavy use made her an easy mark. But no matter how powerful her dependence, it was a story the law didn’t allow the jurors to consider.

“In essence, I convicted myself by telling my story to the jury,” Shook says. “They convicted me. I couldn’t justify what I did. I was guilty.”

Shook had no prior convictions. In fact, the bust in the parking lot was her only arrest. Such factors usually can reduce a sentence. But not in Michigan, the judge explained. His hands were tied.

Shook was assigned to the Scott Correctional Facility, a maximum-security prison in Plymouth. It soon became evident that appealing her conviction was a useless endeavor. She saw murderers and other violent offenders arrive and leave on parole through Scott’s three 12-foot razor wire fences as she did her 20 years for selling dope to the undercover deputy. Finally in 1998, Families Against Man­da­tory Minimums picked up her case and took it to legislators. A poster child was born.

As one of Michigan’s most respected governors, Milli­ken still had clout. He already had thought long and hard about the bill he had signed 20 years earlier. He lent his name to the cause.

“It was fairly soon that I began to realize that the impact of this law was very harsh and very ruthless, and it did not achieve the objectives that it set out to achieve,” Milliken says. “The appalling thing has been that the judges who had to impose the sentences did not have the discretion that they needed so they could assess individual cases.”

Reformers first set their sights on the regime’s cornerstone. Called the 650 Lifer Law, it mandated life without parole for anyone caught selling 650 grams or more of cocaine or heroin no ifs, ands or buts. The 1998 legislature pared back the sentences so defendants sentenced under the law would be eligible for parole after 15 or 20 years, depending on the circumstances.

It was clear, however, that the entire quantity-driven schedule of mandatory minimums had to go. “Now I was serving the same sentence as someone who was doing life for 650 grams or more, so I got really fired up,” Shook says. “This didn’t make any sense.” The campaign continued. In December 2002, outgoing Republican Gov. John Engler signed a bill that eliminated most of Michigan’s mandatory minimums. The new law al­so gives judges discretion in handling individual defendants by allowing them to apply the state’s sentencing guidelines to drug cases, previously ineligible for guideline consideration.

Significantly, while the new law eliminates the mandatory minimums, it leaves the maximums intact, including life, ensuring that judges still can throw not only the book but also the entire library at true drug kingpins.

Support came from all quarters. Mike Kowall jumped on board, and he says he’s anything but shy when it comes to punishing criminals. As a Republican state representative, Kowall even had called for restoration of Michigan’s death penalty, abolished in 1846.

But the mandatory minimum drug sentences were too much to stomach even for Kowall, a former House Crim­­­inal Justice Committee chairman who describes himself as “slightly right of Attila the Hun.” The 2002 elections were bearing down when Kowall asked fellow Republican Engler and the House leadership to support repeal of the remaining mandatory minimums.

“They kind of winced a little bit and said, ‘Do you want to do this in an election year?’ ” Kowall remembers. “Being the Republican that I am, you’re always wary of monkeying around with issues like that for fear that you’ll be called soft on crime. But the opposition wasn’t there. I was shocked.”

Slipping In Sentencing Reform

But while Michigan’s overhaul occurred as a unified effort, the congressional foray into federal sentencing was a matter of seizing the mo­ment.

For several months in late 2002 and early 2003, a bill known as Amber Alert had been kicking around Congress. Named for an abducted child in Texas who never returned, Amber Alert would establish a national system already used in most states to publicly spread urgent news on missing children over television, radio and electronic highway signs.

The legislation languished, however, as the Senate simply wanted to set up the notification system, while the House wanted to attach it to a larger package that increased penalties for most every crime against children, with a heavy emphasis on penalties for circulating kid porn over the Internet.

Amber Alert became what was formally dubbed the Prosecutorial Rem­edies and Oth­er Tools to End the Exploitation of Children Today Act, better known by its convenient acronym, the PROTECT Act.

Enter Attorney General John Ash­croft and Congressman Feeney. The Justice Department already had been pushing for restrictions on downward departures and enhanced ability to appeal sentences with which it disagreed. With his blustery separation-of-powers rhetoric, Feeney made the perfect sponsor.

Though his foes label him an Ash­croft stooge, Feeney came equipped with a long resumé of political battles with courts and judges. As a Florida state legislator, Feeney once mocked a judge who had threatened to hold him in contempt by arriving at the state capitol with his toothbrush.

But most notably, as speaker of the Florida House, Feeney in 2001 led majority Republicans in a campaign to retaliate against the state supreme court for allowing the 2000 presidential election recount to continue. The effort resulted in a law that virtually strips The Florida Bar of its role in the judicial nomination process and vests nearly to­tal power in Gov. Jeb Bush.

In Congress, Feeney quietly slipped the amendment that now bears his name into the larger child-abuse bill on March 26, the night before it was scheduled for floor debate. Although it contained provisions that went far beyond the child abuse legislation, the House accepted the amendment in just 20 minutes without any hearings. Two weeks later, the entire package passed the House 400-25 and the Senate 98-0.

Before many judges even knew what had happened, Con­gress had enacted the most sweeping changes in punishment since the Sentencing Reform Act of 1984 ushered in the guidelines.

Besides ordering the Sentencing Commission to tighten the guidelines for all cases, the Feeney amendment demanded that judges immediately begin issuing written reasons for departures.

Those reports and other documen­ta­tion go to the commission, which must tell Congress at least once a year which district courts have not submitted the appropriate information. Despite concern that release of some sentencing documents, such as cooperation agreements, could endanger individual defendants and law enforcement officers, the amendment requires the commission to surrender them upon demand to the Justice De­partment or the congressional judiciary committees.

Feeney also dropped the due deference normally accorded sentencing judges in departure appeals and replaced it with de novo review in most cases, effectively giving prosecutors two bites of the apple.

The new appellate standard is expected to help the Justice Department meet the act’s requirement that it vigorously oppose downward departures. Central Justice is expected to gain even more influence over plea bargaining and curb possible departures through policies issued last fall. They require prosecutors to file the most serious charges possible and list more than a dozen categories of adverse decisions U.S. attorneys must report to their superiors in Washington for possible appeals.

Judicial reaction was swift and uncharacteristically lacking in restraint. No sooner had the ink dried on a bill to repeal the Feeney amendment than the Judicial Conference jumped on board to support the bill. Some judges bitterly criticized the amendment in their sentencing orders.

Others worried that they would wind up like District Judge James M. Rosenbaum of Minneapolis, who had to hire a lawyer to fend off a congressional threat to subpoena his sentencing records. In New York City, District Judge Sterling Johnson Jr. tried to foreclose that possibility by sealing his documents.

In Los Angeles, District Judge Dickran M. Tevrizian Jr. in January declared the reporting requirements an unconstitutional “power grab by one branch of government over another branch.” Also in New York, District Judge John S. Martin just upped and quit.

“It was a slap in the face at the judiciary, and it shows that things are going to get worse,” says Martin, a Repub­­lican appointee.

Feeney says he isn’t bothered by separate reports issued last fall by the Sentencing Commission and the Gen­­eral Accounting Office suggesting that prosecutors, not judges, initiate most downward departures through plea bargains, “fast track” programs in border states to speed drug and im­migration violators through the system, and motions to cut sentences for defendants who cooperate in ongoing criminal investigations.

Though the Justice Department intends to crack down on plea bargains, the Feeney amendment still leaves the government with unfettered discretion in cutting deals for snitches and in instituting fast-track programs. Some judges say the Feen­ey amendment itself isn’t nearly as infuriating as its stealthy enactment without input from the bench.

“I think the cause of irritation was not only the substance of the Feeney amendment, but the way it was sprung on us,” says District Judge Simeon Lake of Houston, chair of the Judicial Conference’s sentencing committee. “Mr. Feeney, I think, saw an opportunity with a bill that was all but certain to pass.”

But Feeney defends the need for his amendment. “If [judicially initiated] downward departures truly are a rare occurrence, then no one should have to worry about the Feeney amendment,” Feeney says.

The judiciary can expect its voice to become even softer, as the amendment prevents it from gaining a majority on the seven-member Sentencing Commission by limiting judges to three seats. Indeed, Feeney and a Justice De­partment spokeswoman say the commission could get cut out of the game altogether.

The commission in October eliminated nine grounds for downward departures, including a defendant’s acceptance of responsibility; a decision, by itself, to plead guilty or enter into a plea bargain; and payment of restitution only to the extent ordered by the court.

The commission severely limited five other factors, including family support obligations, coercion and duress, and a defendant’s diminished capacity. Still, downward departures remain possible in circumstances not contemplated by the commission.

“No matter how you fine-tune the guidelines, they’re not going to fit every case,” explains former chair Mur­phy. “So you have to have an escape hatch, and that’s the downward departures.”

That isn’t good enough for Feeney and the Justice De­partment, who are pushing to eliminate practically all grounds for downward departures, such as Congress did in the PROTECT Act when it hiked penalties for crimes against children with no participation from the commission.

“There is an infinite number of grounds a creative judge can use to depart from the guidelines,” Feeney says. “We’re probably going to need federal legislation to describe exactly what a judge has discretion to do and what a judge doesn’t have discretion to do.”

John Gibeaut is a senior writer for the ABA Journal.

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