One Thing Barr Gets right: The Sentencing Guidelines Are Indeed Too Harsh

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal. 

When the Justice Department rescinded its recommendation this week that Trump ally Roger Stone be sentenced to seven to nine years, it seemed to lose whatever remaining shred of independence from the White House it possessed. The original recommendation had been in accordance with the Federal Sentencing Guidelines, as are almost all sentencing recommendations. The DOJ’s amended sentencing memorandum, on the other hand, takes the exceedingly unusual position that the guidelines sentence “could be considered excessive and unwarranted” and suggests that a sentence “far less” than the guidelines would be reasonable. The government urges the court to “consider the defendant’s advanced age, health, personal circumstances, and lack of criminal history in fashioning an appropriate sentence.”

In another context, this letter would be a reasonable, welcome, and humane surprise from prosecutors. The sentencing guidelines are, indeed, often “excessive and unwarranted.” A defendant’s personal circumstances should be considered when deciding how much time to give. These are the kinds of sentencing positions the government ought to take in every case. But according to David Patton, executive director of the Federal Defenders of New York, prosecutors “routinely oppose” them when the lawyers in his office advocate for them on behalf of their indigent clients.

“As a federal defender, what’s so troubling to me is not that … Justice overruled local prosecutors who were advocating for a severe sentence,” Patton told me. “It’s that they did it—and to my knowledge have only done it—for the friend of a president. It’s a double standard of the most troubling sort.” The DOJ’s concern about any particular defendant’s “personal circumstances” seems even less genuine when one considers that, on the same day that the amended memo was filed, Attorney General William P. Barr gave a speech to a group of sheriffs, in which he slammed progressive, “so-called ‘reform DAs,’” claiming falsely that they are “putting everyone in danger.”

It would be hard to overstate just how much damage to the rule of law is done when the White House interferes with the administration of justice for political reasons. This is why, in response to Barr’s actions, more than 1,100 former federal prosecutors and Justice Department officials called on him to step down this week. They also asked current government employees to report any signs of unethical behavior at the Justice Department. “Each of us strongly condemns President Trump’s and Attorney General Barr’s interference in the fair administration of justice,” reads an open letter signed by the former employees. Those actions, they said, “require Mr. Barr to resign.”

But, those political implications aside, Trump and Stone are not the first privileged people to expect preferential treatment from the justice system, and they won’t be the last.

Last year, billionaire Henry T. Nicholas III, co-founder of the semiconductor firm Broadcom, was arrested in Las Vegas for narcotics trafficking after police found heroin, cocaine, methamphetamine, and Ecstasy in his hotel suite. Despite the fact that he was facing a maximum life sentence and had the means to travel at a moment’s notice, he was released without having to post any bail. The district attorney, Steve Wolfson, offered Nicholas a plea deal that would allow him to avoid prison in exchange for an Alford plea—meaning that he could maintain his innocence but acknowledge that there was sufficient evidence to convict him—on a single count of possession of a controlled substance. The deal called for Nicholas to participate in two drug counseling sessions a month, perform 250 hours of community service, and pay $500,000 to a drug treatment facility. This sum amounted to 0.01 percent of his net worth. Even if he failed to comply, he would face only probation. By contrast, an ordinary, nonbillionaire facing the same charges most likely would have been offered a plea deal of about three to 21 years in prison.

This kind of disparity is exactly what the Federal Sentencing Guidelines were designed to avoid. Congress adopted them, along with various mandatory minimums, under the Sentencing Reform Act of 1984 as a direct response to judicial discrimination and excesses in doling out sentences. The law had lofty goals, aspiring to address the worst effects of indeterminate sentencing and increase consistency, fairness, accountability, and transparency. It did initially succeed in reducing some sentencing disparities among judges, but was soon rightly criticized for rigidity, and for taking power away from judges and bestowing it on prosecutors.

About two decades later, in the case of United States v. Booker, the Supreme Court made the guidelines advisory, not mandatory. This decision increased judicial discretion somewhat, although mandatory minimums remain mandatory. Did this change bring about equality and fairness for criminal defendants? No. Harvard Law School Professor Crystal Yang conducted an analysis of people sentenced between 1994 and 2009 and concluded that racial disparities increased significantly after the Booker decision. Yang found that the Black-white sentencing gap increased by almost two months in the post-Booker period. Black defendants were “more likely to be sentenced above the Guidelines recommended range, and less likely to be sentenced below the Guidelines recommended range, compared to similar white offenders,” according to the analysis.

In the latest effort to rid the system of bias, many states are turning to predictive algorithms and risk assessment tools to help determine sentences, an effort that critics warn could exacerbate and enshrine race-based disparities, as The Daily Appeal reported last week. The American legal system has a history of fluctuating between discretion and constraint in pursuit of equality, and both seem to yield discrimination.

Given that disparities between rich and poor still run rampant in the criminal system, it is tempting for those of us in the social justice community to take the DOJ at its word in its amended sentencing memo when it urges a tailored, nuanced, and lenient outcome. The government even included in the memo a reminder that “the Supreme Court has stated that a sentencing court ‘may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented.’” One civil rights attorney suggested on Twitter that federal defense lawyers file memos in all of their cases, stating that the DOJ believes that guidelines sentences are not presumptively reasonable.

But, of course, in an administration as corrupt as this one, it would be naive to try to shame the DOJ into the same kind of lenience for less privileged defendants. In other contexts, however, there might be hope. In response to Nicholas’s sweetheart deal, some public defenders in Las Vegas decided to ask prosecutors to grant their indigent clients terms similar to those offered to the billionaire: a reduction in sentence, release without bail and, as a sentence, a contribution of 0.0128 percent of their net worth. The draft motion, which was filed in similar cases, states: “Billionaire Defendant Nicholas and Defendant XXX are similarly situated and should be similarly treated by the prosecution and the courts. The primary difference between the two men is that Billionaire Defendant Nicholas is wealthy, while Defendant XXX is not.”

“Within my world, the motions were not well received,” said Christy Craig, chief deputy public defender of the Clark County public defender’s office, though she noted that they have yielded “some wins.” Craig was one of the attorneys who drafted the motion. However, “one thing it did do was it opened up a dialogue in the legal community,” she added. “It really shined a light on those inequities and made everyone more aware of them, which made it much easier to argue in those cases for some fairness and equity.”

Among the ironies of the Stone case is that, in the amended sentencing memo, the prosecutors cite Berger v. United States, a 1935 case in which the Supreme Court famously held that a prosecutor’s interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done.” In an adversarial role, the goal of seeking justice can, and often does, get lost. Discretion or constraint alone will not get us the fairness we seek in criminal sentencing, but highlighting systemic disparities, as Craig did in Las Vegas, can help. Attorney General Barr might be a lost cause, but plenty of prosecutors initially joined the profession hoping to do what the court in Berger commanded: seek justice. Reminders of just how unfairly prosecutions often play out might bring some prosecutors back to that mission.

Editor’s note: A version of this article ran in The Washington Post on Friday.