Just some (of lots and lots of) commentary about Roger Stone(d) federal sentencing process

Unsurprisingly, lots of folks have lots of things to say about the upcoming federal sentencing of Roger Stone and the sentencing process and controversy that has already unfolded.  Here are links and short passages from three notable pieces that recently caught my eye:

From Jacob Sullum at Reason, "Roger Stone Deserves a Lighter Sentence, but Not Because He Is Trump's Buddy":

This week President Donald Trump and his appointees at the Justice Department intervened in the sentencing of Roger Stone, a longtime Trump crony who was convicted last November of obstructing a congressional investigation, lying to a congressional committee, and witness tampering. Yesterday, the day after four prosecutors assigned to the case recommended a sentence of seven to nine years, Timothy Shea, the interim U.S. attorney for the District of Columbia, overrode them, suggesting "a sentence of incarceration far less" than the one originally proposed.

That reversal, which came after Trump called the original recommendation "horrible and very unfair," is unseemly and smacks of legal favoritism. At the same time, a prison sentence of seven to nine years is disproportionate given the nature and consequences of Stone's crimes....

Regardless of its motivation, the revised memorandum is admirably measured and fair-minded, noting that prosecutors have a duty to pursue justice, not simply to clobber defendants with the heaviest penalties the law allows. It would substantially improve the quality of justice in this country if prosecutors more often took that approach with defendants who are not the president's buddies.

From Andrew McCarthy at The National Review, "The Roger Stone Sentencing Fiasco":

But for his connection to Trump, Stone would never have been pursued in a collusion fever dream that Mueller’s prosecutors knew was bogus when they charged him. Yet his crimes, while exaggerated, were real. He was convicted by a jury and, under federal law, that presumptively warrants incarceration, though he could be spared by the judge (whom the president has picked a strange time to antagonize). If the president thinks that Stone and Flynn (among others) have been given a raw deal, the Constitution empowers him to pardon them, or at least commute their sentences.

If President Trump is afraid, in an election year, to take the political hit that a pardon for Stone would entail, that is understandable. But then he should bite his tongue and click out of Twitter. The Justice Department’s job is to process cases, including Mueller cases, pursuant to law. If the president wants to make those cases disappear, he has to do it himself and be accountable. His provocative running commentary only ensures that the DOJ will be accused of kowtowing to him. It also guarantees that, if the ongoing criminal probe of the Russiagate investigation eventually yields any indictments, they will be assailed as political persecutions rather than good-faith law enforcement.

From David Oscar Marcus at The Hill, "Let's use Roger Stone's case to fix our broken justice system":

People are rightly upset that DOJ is saying that the sentencing guidelines apply to everyone — except the president’s friends.  That’s a huge problem, and it’s no wonder that the prosecutors handling the case resigned.  How can they go into court every day and ask for monster sentences across the board except for FOT (Friends of Trump)?

But the larger problem, and the one that no one is talking about, is that the system itself is fatally flawed because it is set up for prosecutors and judges to issue unjustifiably harsh sentences.  Stone shouldn’t be thrown in a cage for 7-9 years — and neither should any other first-time non-violent offender.  There are two important fixes available:

First, we should abandon the sentencing guidelines.  Often prosecutors fall back on the sentencing guidelines for cover when asking for these crazy high sentences. Those “guidelines” are a complicated point system that calculate potential sentences by adding and subtracting points based on factors like the amount of loss, whether the person is a leader, and so on.  The problem with this point system is that it is not based on any empirical data or study. The numbers are plucked out of thin air.  Further, they don’t take into account the characteristics of the individual being sentenced.  Has the defendant led a good life?  Did she serve in the military?  Donate to charity?  Raise a good family?  The guidelines don’t care.  The Supreme Court recognized these problems and said that judges should simply consult the guidelines but should not be bound by them.  That was a good start, but the truth is that they aren’t even worth consulting.  They don’t work, and — since their implementation back in 1984 — our jail population has exploded.

Second, we should eliminate the trial tax.  This case is a good example of the trial tax in action. Had Stone pleaded guilty, he would have been looking at a sentence of closer to 24 months under the guidelines.  And had he met with prosecutors and cooperated, he likely would have been sentenced to probation.  Because he had the audacity to go to trial, his sentence goes from probation to 7-9 years.  It’s no wonder that innocent people plead guilty. It’s no wonder that trials are vanishing.  Before the sentencing guidelines and the trial tax, 20 percent of cases went to trial.  Now it’s less than 3 percent.  That is pretty stark evidence that the trial tax has become too severe.

Lots of people are rightly saying that Trump was wrong to jump in for his friend and overrule the line prosecutors’ sentencing recommendation.  But what was wrong about it was not overruling an overly harsh sentence.  What was wrong about it was that he did it for a friend instead of across the board. We are in bad need of criminal justice reform. Let’s overrule all of these insane sentencing recommendations for first time non-violent offenders — not just the FOT.

Prior related posts:

• For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!" 
• DOJ now says "sentence of incarceration far less than 87 to 108 months [for Roger Stone] would be reasonable under the circumstances"  
• Would it be improper for a President to write a character letter for a defendant facing federal sentencing?