Show me the role reversal when sentencing guidelines are more lenient

Anyone familiar with advocacy and debate surrounding federal sentencing knows that federal prosecutors are frequently extolling the virtue of sentencing guidelines and that defense attorenys are frequently excoriating the guidelines.  Though the prosecutors claim they are fans of crime-based consistency and defenders claim they are eager for consideration of individual circumstances, what really seem to be driving the advocacy and debate is how relatively severe the sentences are set under the federal guidelines for most crimes.

Some new proof that debates over the virtues and vices of guidelines are really driven by views about sentence severity and leniency is emerging from the Show Me state these days.  This local article, headlined "Missouri overhauling controversial sentencing guidelines," spotlights the role reversal in who is articulating which talking points about sentencing guidelines when the guidelines seem to be too lenient rather than too tough in most cases:

The Missouri Legislature requires the Missouri Sentencing Advisory Commission to figure averages of actual sentences every year for every possible crime, and from those to calculate ranges of "recommended sentences."

State Supreme Court Judge Michael Wolff, who heads the commission, has appointed a subcommittee to review the process. The results could be small tweaks to the 175-page sentencing guide or a complete overhaul. "The subcommittee can take a fresh look at it and make sure we're presenting information in the sentencing process that will be helpful for the judge," Wolff said.

For years, many Missouri prosecutors have called guidelines "meaningless" and "a waste of resources." They say the system is unfair because officials lump categories of crimes together, and some crimes are not charged often enough to make a meaningful calculation.

The guidelines do not take into account when a defendant is convicted of multiple crimes at the same time, critics say, and they never call for the maximum sentence allowed by law. "There is simply no way to provide for enough variables in any recommendations that make it meaningful in sentencing," said Zahnd, the Platte County prosecutor.

St. Louis Circuit Attorney Jennifer Joyce said she has been against the guidelines since getting elected more than a decade ago. "Each case needs to be evaluated on its own merits," she said. "There is no formula that is going to ensure that justice is done."

She offered the example of Tyran Hubbard, who pleaded guilty in 2007 in St. Louis Circuit Court of forcible rape and sodomy.  He had raped and beaten a female college student at gunpoint in her apartment, was interrupted attempting a similar crime less than a week later and eventually was arrested lurking near apartments where many college students live.  The guidelines recommended 12 years in prison. Judge Timothy J. Wilson gave Hubbard 30 years.

The guidelines do have supporters, who argue that the information empowers judges and sets realistic expectations for people not familiar with the judicial process.  St. Louis Public Defender Mary Fox said that defense attorneys often highlight recommended sentences when advocating for their clients.  "They're reasonable," Fox said. "They are a good starting point; then a judge has to take a look at each case individually."  Fox said the guidelines took into account plenty of factors — including criminal history, education, age and employment.

Wolff, the Supreme Court judge, said data showed that 90 percent of Missouri sentences end up within the recommended range.  He said only 5 percent of defendants were sent to prison when the guidelines recommended probation.

"This is just a piece of information about what judges are doing in the whole, not what ought to happen in any given cases," Wolff said. "We make it clear that the judge is free to give a more harsh or lenient sentence within the statutes." He added, "You can argue from any individual case that a recommendation seems too lenient."

James McConnell, the prosecutor in Shelby County, who will serve on the subcommittee, said the debate usually came over violent or sex crimes.  He said there was not much disagreement about sentences for property crimes.  Some lawmakers have proposed eliminating recommendations for the most serious crimes, McConnell said. "Those are the ones in which most of the time prosecutors don't think they make sense," he explained.

As federal sentencing fans know, it is the prosecutors in the federal system who generally argue that the federal guidelines provide a reasonable sentencing starting point, and it is the defense attorney who are heard to complain that no formula can ensure sentencing justice.  But, in Missouri, since the starting points provided by the state advisory guidelines are more to the defense's liking, we instead get the roles reversed and the state defenders are defending guidelines against (over-stated) attacks by state prosecutors.