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Sunday, Nov 22, 2009
Even critics of the new system agree with Murphy that the old ways were too loose and that trial judges' sentencing decisions should be reviewable. As for the current system, Murphy concedes there are problems with it, but argues that those responsible for them aren't judges, but legislators. "You put me in the situation of having to defend the system, but I'm not the one that created it. I'm here to say that people may overlook the virtues of the guidelines and that we are working hard to make them better. But if you want to make them just advisory, you could go talk to people on the Hill. I think you would find very little momentum to make the guidelines advisory."
Asked why the legal system should distrust the very men and women it exalts for their sobriety and judgment, Michael Horowitz, the lawyer who represents the Justice Department on the Sentencing Commission, says that this is "not a fair way of phrasing the issue. I don't think it's about not trusting judges. I think it's trying to write a guidelines system that evens out deviations from the norm."
Like Murphy, Horowitz relates tales of the pre-guidelines days, when he worked in Manhattan's federal court. He recalls how savvy defense lawyers would jam the court when a notoriously lenient judge was presiding so that they could plead their clients guilty and get a light sentence. "That didn't make sense," he says. On the other hand, he says, the guidelines contain many flexible elements to avoid injustice, such as downward departure, which allows a judge to argue that the case presents factors not considered in the guidelines. "Judges who think there is an unfairness in the system can in fact ameliorate that unfairness through the departure mechanism and other factors if they put their minds to it."
So, where a nonviolent drug offender used to hope he would draw a soft judge, now he has to find a softhearted judge who also knows how to navigate the Guidelines Manual -- a book that weighs more than the Internal Revenue Code, according to Cabranes -- and the relevant case law. Could a softhearted judge even rescue the girl caught with two kilos at the Minneapolis airport? "I think if you checked the case law on couriers and sentencing, you'd find a lot of appeals courts upholding downward departures in those circumstances," Horowitz says. In very few cases are judges' hands really tied, he argues.
Maybe Judge Magnuson hasn't boned up on the guidelines enough. At any rate, he says he is forced to impose sentences that leave him hurting. "The trouble is, I have to look the person in the eye at sentencing," Magnuson says. "Often you have to look at the children too, who are sitting in the front row. And you realize that when you sentence the mother, as a practical matter you're giving a delayed sentence to the children."
Magnuson harbors no bitterness toward Murphy, who used to serve alongside him in Minneapolis. He knows that with drug sentences, all she and her four fellow judge commissioners can do is "recommend" a guideline that is tough enough to placate lawmakers: The commission always faces the possibility that Congress will decide that it's too soft on drugs and pass a draconian mandatory minimum. She can't make the cup pass from the trial judge; at best, she can mix up a slightly less painful poison.
In February, Magnuson came about as close as a judge can to cursing out Congress in a judicial opinion in a case of conspiracy to manufacture methamphetamine. He refused, as he put it, "to sacrifice Shellie Lee Langmade on the altar of Congress's obsession with punishing crimes involving narcotics." He called the government's conduct in the case merciless, relentless, bewildering, unconscionable and patently unjust. But the most he could do was to recuse himself and allow another judge to impose the 10-year minimum. The prosecutor had successfully appealed Magnuson's attempt to avoid the mandatory and give Langmade a "mere" 70-month sentence. That appeal hinged on whether Magnuson had to count a misdemeanor plea on Langmade's record relating to two 1993 bad checks that totaled $83.50, for which she received one year of probation. Had it been 364 days of probation she would have been cleared.
Judge Robert Pratt of the Southern District of Iowa says he doesn't dare defy the guidelines, though he tries to apply them "creatively." Nor is quitting an easy option: "The argument for staying here at this point is that the next son of a bitch may be worse than you are," Pratt confides. He was appointed by Clinton in 1996. "I thought this was a good job before I got it. I didn't come here to put away poor people for low-level, nonviolent drug crimes, but that's what the job amounts to. All you can do is bitch about it."
Almost as bad as slamming the helpless, he says, is having to go easy on the savvier, more culpable defendants, whom prosecutors reward with lighter sentences for "snitching" on their friends and associates. "It used to be a defense lawyer's skill was in convincing a judge and jury on the facts and the law. Now the skill in being a lawyer is who can run to the U.S. attorney's office quicker and snitch. That's what the law is -- who can snitch best," the former defense attorney says. So much for proportionality in sentencing, which was supposed to be the main objective of the sentencing guidelines.
