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June 23, 2008

Fifth Circuit begrudingly affirms looney mandatory sentence in Looney

With thanks to the folks who alerted me to the decision, I can encourage everyone to check out the Fifth Circuit's work today in US v. Looney, No. 06-10605 (5th Cir. June 23, 2008) (available here), in which the panel criticizes federal prosecutors for a stacked indictment which resulted in a functional mandatory life sentence 53-year-old woman's first offense.  Here are the key closing paragraphs from the per curiam opinion in Looney:

We have carefully considered all of Ms. Looney’s challenges to her sentence and can find no basis upon which to vacate any portion of it.  As we have noted, Ms. Looney was subject to a mandatory minimum sentence of forty years — essentially determined by Congress.  Although Congress established the mandatory minimum terms of imprisonment, and further provided that the firearms counts must be served consecutively, it is the prosecutor’s charging decision that is largely responsible for Ms. Looney’s ultimate sentence.  Instead of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might well have charged her with only one, which would have avoided triggering the twenty-five-year mandatory, consecutive sentence for the second firearm count.  The prosecutors also could have chosen to charge Ms. Looney with the drug offenses and requested a two-level enhancement under the Sentencing Guidelines based on the involvement of firearms with the offenses. Instead, the prosecutor exercised his discretion — rather poorly we think — to charge her with counts that would provide for what is, in effect, a life sentence for Ms. Looney.

We do not question the authority — or the wisdom — of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing.  Nor do we in any way minimize the seriousness of Ms. Looney’s offenses. Moreover, there is nothing legally improper about the prosecutors’ charging decisions with respect to Ms. Looney, nor about the practice of confecting an indictment that would provide for the largest mandatory sentence.  Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence.  For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat — rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences.  We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness.

June 23, 2008 at 04:26 PM | Permalink

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Comments

I agreed with the reasoning up until this point:

For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat — rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences.

If this is plausible, it's a problem with the jury system, not with prosecutorial discretion to stack mandatory minimums.

I'm sure we'll hear from FAMM if they haven't weighed in already.

Posted by: krs | Jun 23, 2008 5:29:23 PM

Perhaps if this is a problem with the jury system rather than prosecutorial discretion, it will be solved when juries become more independent of prosecutors arguments. This will happen as more citizens interface with the criminal justice system. Perhaps it is happening now.

Posted by: beth curtis | Jun 23, 2008 7:16:00 PM

The Court said: "We do not question the authority — or the wisdom — of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing."

This was a mandatory penalty, not punishment. Penalties are fixed before the fact to forestall conduct, and enforced after the fact to maintain the credibility of penalty threats. Punishments are fixed after the fact, within a range that was established before the fact when the problem was not fully knowable.

Congress missed the mark; a life sentence to maintain the credibility of a penalty threat is looney. Somebody should question their wisdom. At the very least, it is not cost effective.

Posted by: Tom McGee | Jun 23, 2008 7:38:23 PM

The charging decision in this case is even more outrageous when you consider the fact that the US Attorney in the Western District of Oklahoma (where the methamphetamine was actually being sold) charged a co-defendant with only distribution of methamphetamine and no 924(c) counts. Her sentence - 37 months. Prosecutorial discretion at its finest.

Posted by: Not a latte sipping district | Jun 23, 2008 9:34:59 PM

The Circuit's toothless admonition to prosecutors to use more discretion is futile: prosecorial discretion is to discretion as military music is to music.
A courageous opinion would hold the following: "we vacate the sentences. we address and decide sua sponte an issue not raised by the parties. We note that the jury was not advised that upon conviction the defendant would be facing mandatory terms of imprisonemnt. This is plain error. Hencefoth whenever a charge carries a mandatory minimum penalty, the jury must be advised of the same--let the jury know the consequences of its verdict."

Posted by: Michael Levine | Jun 24, 2008 10:05:22 AM

"courageous" is one word for it.

Posted by: | Jun 24, 2008 12:02:14 PM

"originalism" is another word for it.

Posted by: | Jun 24, 2008 2:20:05 PM

Take that wrist! (Slap!) And that! (Slap!)

Posted by: RW | Jun 24, 2008 2:28:52 PM

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