Understanding US Sentencing Laws - a layperson speaks

A lot of people are very confused about the recent Supreme Court decision in US v Booker. As a "leader" of a group that advocates for Sixth Amendment rights (trial by jury) and an independent judiciary, in lieu of the "Modern Sentencing Reform System" that is under fire today, I feel obligated to lend a lay-voice to understanding these new developments.

The Past
In the mid-1980's, US lawmakers bent to the will of a get-tough-on-drugs crowd and gave birth to two kinds of sentencing schemes. They were given two different names. Names were very important when the 'modern reformists' began carving out new laws for the federal system. One sentencing scheme was given the name, Mandatory Minimum Sentencing, but there wasn't anything minimum about them.

Another scheme was named the US Sentencing Guidelines, but they weren't a guide at all, just more mandatory sentencing. Called by any other name these laws were not sweet, but crushing in their power to punish a low-level drug law violator and other nonviolent types.

Then, with a whoosh, Congress abolished parole, and modern sentencing reform was complete when there was no hope for earned, early release.

A New Era Dawns!
Prison expansion became a prison industrial complex -- in less than a decade. The United States quadrupled the number of prison beds by building one prison a week. Before the new millennium appeared on the horizon, our USA captured the title of World's Leading Jailer! Whoo whoo! November Coalition commemorated the day at solemn vigils across a nation. I stood with others because my brother was indicted in a drug conspiracy, lost at trial, and sentenced to 27 and half years. He was one of two million prisoners.

Back in the late 1980's, I thought it was unusual for a person to get that much prison time, and so agreed with others that brother Gary should fork out thirty grand to a post conviction specialist to appeal his sentence. Har! Har! Har! If you didn't get the joke, the punch lines are coming.

I think it was about that time when I read of a young woman who mailed some LSD for a boyfriend, hoping her willingness to ignore his illegal behaviors would bring him back to her lonely life. If I remember correctly, she plead guilty and accepted the Mandatory Minimum based on doses of LSD she mailed. If she had gone to trial, she would have faced not only the scheme of Mandatory Minimum Sentencing, but also the full range of US Sentencing Guidelines. By "copping to a plea," she could avoid one rail of sentencing.

While she was in prison, she called her mother and during one call three men broke into her mother's home, miles and miles away, and the young federal prisoner heard the rape of her mother begin. To make a long story short, the three rapists got out of prison before the young drug law violator did.

That story sobered me. I began to study these schemes more intently - and ignored the names with 'minimum' and 'guideline' woven in, chosen no doubt to mislead a gullible public. Later it would confuse an astute public, bent on ending drug war injustice because the laws make no sense at all -- only a misery of people's lives.

In the mid-90's a slight reform was made, ensuring that a person who copped out, and cooperated, could get a downward departure from both sentencing schemes. Of all things, this was dubbed the "safety valve," and further highlighted the fact there was nothing mandatory or rigid, if you played by the game. The name of this part of the game begins with the letter "C."

Cop Outs
Plea agreements are the norm; because when people go to trial in the federal court system, they lose, plain and simple. And to look into the matter further, study the facts(www.drugwarfacts).

Cooperation
If a person gets arrested, they are sat down and told, "We gotcha three ways, we win, so tell us about everyone you know involved in illegal drug activity, or you rot in prison." Some are asked to 'wear a wire,' and take 'evidence dope' out to the streets for re-sale 'stings.' That is what 'cooperation' is.

Cops
The police work with the prosecutor on Cop-Outs and Cooperation, providing police informants, training for newly recruited snitches, and putting together enough information to arrest more people.

Cycle
That circle of double-C gaming of desperate people that are up-against-the-wall goes 'round and 'round, and adds up to the biggest factor behind the 7 million people in one type of legal custody, or another in the US today.

Changes in the Wind
By the eve of 2005, people looking up-close and personal at the terrible situation knew the cases before the Supreme Court were liable to shake things up. Some observers heralding deliverance, others wistfully hopeful a fissure or crack in the damn dam of injustice was coming. Signs were pointing that way, not that a new movement to right the wrongs hadn't been pressuring Congress and teaching others about the problems of determinate sentencing for a long time. Oppression, as we know, breeds its own resistance.

Near the end of 2003 special meetings were instituted, at which Justice Kennedy took a stand opposing the First Rail of determinate sentencing called Mandatory Minimum Sentencing. Other experts chimed in, including members of Congress.

By mid-January of 2005, we'd see exposed the Second Rail of determinate sentencing, not criticized fully, but deemed unconstitutional by the Supreme Court. It's true that few can understand the implications, in part because it is, like the names, designed to deceive. We do know that the US Sentencing Guidelines as applied before Booker, were unconstitutional. Now they are advisory -- see they can't call them a Guide, because when they called them that -- they weren't.

Still with me?

Imagine the challenges for leaders of groups of victims of injustice that we call ourselves, trying to sort out the future, when the best legal minds are calling the Supreme Justices' dualistic decisions in the Booker case - schizophrenic.

Let's play another game.

Remember Monopoly? Well, that is what prosecutors had before the Booker decision. Prosecutors once decided on the charges that would go before a jury, and which charges they'd bring up at sentencing.

Before Booker, a prosecutor could accuse a defendant of a few drug crimes the jury would rule 'not guilty,' and yet the defendant could receive prison time on crimes the jury thought them innocent, or acquitted of. A Sentencing Guideline hearing in 1997, enumerated the monopoly of power in the hands of federal prosecutors, if you don't believe me.

Left Behind
According to the Supreme Court, the new ruling can only be applied from this day forth, aside from prisoners still on direct appeal, and brings us to the 'left-behind.'

When Timothy McVeigh blew up the federal building in Oklahoma, President Clinton passed an Anti-Terrorism Death Penalty Act that put drastic time limits on defendants' rights to appeal, and other restrictions. Prisoners rushed legal work through the pike, and most of the 200,000 prisoners are being told not to expect relief.

So, today, in a federal prison near you, there are old-law prisoners (sentenced before 1984), and old, new-law prisoners (people sentenced between 1984-2004 approximate), and brand new, new-law prisoners (after 2004 - post Booker).

The 'left behind' in this series isn't best selling Christian fiction, but real people, imprisoned unfairly via US Sentencing Guidelines pre-Booker case. Most in federal prison will not experience any rapture with the notion there is a fissure in the cracks of the foundation of the war on drugs. They want to come home. Many feel personally responsible for the new movement to end injustice, but most will gain no reward for their hard work.

It's not a game - this Constitution of ours. And we don't intend to be left behind, nor do we think we'll be raptured, but a special Congressional or Executive order could redress the wrongs, and create a system of early release.

Barriers to a prisoner's re-entry into society could be lifted, and that would redress still more of our grievances. None of this reform is complicated. If there isn't an obvious better way, we'll go back to the time when judges decided and communities were involved in what was happening to defendants -- that past time before merged police agencies started busting down doors first, and asking questions of the neighbors later.

Going back in time
"All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been unconstitutionally sentenced. Indeed, I think executive and legislative officials, as well as the US Sentencing Commission, have a constitutional responsibility to at least consider possible remedies for already-sentenced defendants who, because of judicial retroactivity doctrines, may not get relief in the courts. But this is true ivory tower wishful thinking: I would be truly shocked if anyone talks at all about providing relief for old cases (beyond what courts might order), even though in a perfect world this would be a serious topic for conversation."  --- Douglas Berman, Professor of Law, Ohio State University, January 13, 2005

The President and Congress, working with the current Sentencing Commission (or not), could address retroactivity, and make release-provisions for those unfairly sentenced, and languishing in prison.

And while that might be ‘ivory tower’ or ‘wishful thinking’ - that kind of remedy is a victim's ultimate recourse. That said, it becomes our responsibility to get this remedy.

If we are going to expect "talk at all about providing relief for old cases" - we will have to be the branch of government that begins those talks - We The People.

While it is not a perfect world, those with the intention of making it a better one must include a remedy of retroactivity in serious conversations today!