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February 12, 2007

Irrational (but presumtively reasonable?) federal sentencing

Stuart Taylor Jr. has has this great commentary in The National Journal entitled "Irrational Sentencing, Top To Bottom."  Here are snippets:

The spectacle of former CEOs Bernard Ebbers and Jeffrey Skilling getting sent to prison for 25 and 24 years, respectively, reminded me a bit of Roman emperors throwing criminals to the lions and bears to gratify circus crowds.  Yes, Ebbers and Skilling are world-class crooks.  The first helped inflate WorldCom's profits by billions of dollars. The second presided over the multiple frauds that caused the collapse of Enron, the largest corporate bankruptcy in history.  They helped squander the nest eggs and kill the jobs of thousands of people.

But does this justify locking them up for longer than we do most murderers?  (The average federal sentence for murder is less than 19 years.)  Does it call for keeping Ebbers in prison until he is 87 and Skilling until he is 73?  Those were the no-parole penalties specified by the U.S. Sentencing Commission's guidelines, even if both men earn the maximum 15 percent reduction for good behavior.

To be sure, these are not the most egregious examples of the savage severity of our sentencing laws. Worse still are the long terms imposed on the scores of thousands of nonviolent, nondangerous drug offenders now rotting in state and federal prisons around the country.  But while we have become numb to the minimum drug sentences mandated by Congress since 1986 (which have driven up the sentencing commission's guidelines as well), Ebbers' and Skilling's near-life-terms are fresh reminders of how wantonly our sentencing laws trash the lives of nonviolent convicts at the top and the bottom of the income scale.

To his great credit, Taylor goes on in his commentary to highlight the parsimony provisions of the Sentencing Reform Act, a provision that federal circuit courts and the US Sentencing Commission make a habit of ignoring (see here and here). 

It is a sad and telling reality that a thoughtful observer like Taylor recognizes that the federal guidelines often produce "irrational" sentences for nonviolent convicts (like Mario Claiborne and Victor Rita), while the US Department of Justice, the US Sentencing Commission and most circuit court asser that the federal guidelines are "presumptively reasonable" in all such cases.

February 12, 2007 at 11:44 AM | Permalink


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How does one know that a person serving a prison sentence for a drug offense is nonviolent and non dangerous? These writers seem to ignore the common practice of plea bargaining which can result in a more serious charge being reduced to a drug charge. A significant fraction of the Federal drug convictions are for conspiracy which is much easier to prove than drug trafficking or drug manufacture. I lived in a neighborhood in Portland Oregon where there was a lot of drug trafficking and those folks were very violent. A drug dealer shot and killed another drug dealer in broad daylight in front of a dozen witnesses about 100 yards from where I lived.

Posted by: John Neff | Feb 12, 2007 12:27:48 PM

The value of a life is a few million dollars. Street crime isn't even in the same league as a billion dollar fraud.

But I also think that no crime justifies a 20+ year prison sentence.

Posted by: John Carr | Feb 12, 2007 2:45:23 PM

have you taken leave of your senses? plea bargaining in federal courts to REDUCE your sentence? Wait till you step up to be "enhanced" by the republican judge. There are women in federal camps, where the govt. concedes they are non violent (no histories whatsoever), and doing years and years. If they give them YEARS, why must they also separate them from families so egregiously, AND impose huge fines upon them. All these penalties? For first-time offenders.

Your one instance, of one drug-dealer, is inapplicable to what really goes on in federal sentencing, where gasbags sit on the bench fulminating at the dreck before them, and their nodding brotherhood affirming them from above.

Posted by: Fluffy Rosinia | Feb 12, 2007 2:47:35 PM

John, not even murder?

Posted by: federalist | Feb 12, 2007 3:22:20 PM

While it is true that the average murder sentence in federal court is 19 years, the AVERAGE fraud case is only 10 MONTHS. So, the AVERAGE fraud case would not get the high sentence that these very-non-average defendants received. Given that one of the factors in sentencing is "deterrance", and given the destruction to the THOUSANDS of lives that these two wrecked havoc on, the sentences are not unreasonable. What Professor Berman and Taylor are asking for is that age should have been a factor in the sentencing (because of the basically life sentence given the defendants). Age is not "ordinarily relevant" in the sentencing decision unless the defendant is "elderly or infirmed." These two defendants are not either, though some of their THOUSANDS of victims are! If it were up to Berman and Taylor, I guess if you steal without a gun, you should get probation. Those days are over in the federal system, thank goodness!

Posted by: Kelly Nance | Feb 13, 2007 7:19:08 AM

federalist -- I support capital punishment in cases where 10-20 years is not enough. I believe that prison terms should be kept short. I would cap prison sentences even if the current effective ban on executions were retained.

Posted by: John Carr | Feb 13, 2007 1:00:15 PM

Prof. Berman: I would like to see an article with comments, so we could post examples of irrational guidelines. For my part, I've discovered that if you commit statutory rape on US territory (18 USC 2243(a)), your base offense level starts at 18 (2A3.2) but if you travel in foreign commerce just thinking about committing statutory rape (not actually doing the deed) (18 USC 2423(b)), the base offense level is six-levels higher, starting at 24 (2G3.1). Go figure.

Posted by: Tstaab | Feb 13, 2007 1:14:25 PM

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