"Nightmare of federal sentencing guidelines"

The title of this post is the headline of this new commentary by Bob Barr in the Atlanta Journal Constitution. Here are a few excerpts which highlight how Barr uses a recent high-profile white-collar sentencing to make his points about federal sentencing laws and practices:

Last week I was in Cedar Rapids, Iowa, where I attended a hearing in federal court at which a 50-year old man was sentenced to 27 years in federal prison –- in effect, a life sentence. The defendant, Sholom Rubashkin, is not a murderer, serial rapist or child molester; he is not a drug king pin and he did not bilk hundreds of innocent investors out of billions of dollars. Rubashkin is a first-time offender who was convicted late last year of a number of white-collar offenses stemming from his management of a large kosher slaughterhouse and meat packing plant. For this, he received what amounts to a life sentence.

While I did not represent Rubashkin at his trial, I will be assisting in the appeal of his case. Among the likely grounds for appeal are the 27-year sentence he received and the calculations by which the judge determined the length of that sentence. My purpose here has not to do with the case itself, but rather with how this one incident illustrates major flaws in how those who run afoul of any of more than 4,000 federal criminal laws, are sentenced. It ought to worry everyone....

What the average, non-lawyer citizen –- and perhaps even many lawyers who do not practice federal criminal law –- probably fails to realize, is that ... men and women found guilty of white collar crimes far less severe than a Bernie Madoff’s can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government....

Most Americans understand that individuals cannot be forced to testify against themselves in criminal proceedings. What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him in order to increase his sentence.... In [addition], the government can manipulate or control the amount of a victim’s “loss” so as to permit a judge to then increase a defendant’s sentence.

These circumstances represent the tip of an iceberg that has long infected sentencing procedures in federal court; a system in which complex and, in many respects, arbitrary calculations of “sentencing guidelines” can result in punishments that are not only unfair but truly absurd. It is a system that cries out for reform.

Related posts on the Rubashkin case:

• "More Former AGs Question Sentence Sought in Bank Fraud Case"
• Can and should religious considerations influence bail decisions?
• Federal sentencing hearing starting in high-profile Rubashkin white-collar case
• Federal prosecutors now seeking 25-year prison term for Rubashkin
• Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
• Supporters decry while prosecutor defends stiff sentence given to Sholom Rubashkin