No justice by the numbers: the federal sentencing guidelines misadventure - the Sentencing Reform Act of 1984

Jesus Lopez-Gil was a courier, or "mule," in one of the more ingenious plans devised for smuggling cocaine through an airport. Unlike most mules, LopezGil did not have the drugs hidden in his baggage, strapped to his body, or wrapped in condoms that he had swallowed. With Lopez-Gil, the luggage he carried was the cocaine. Mixed right into the thirty-one pounds of black fiberglass that made up the side panels of his two suitcases was slightly more than five-and-a-half pounds of cocaine, which could be extracted only by a chemical process that separated the drugs from the fiberglass.

When it came time to sentence Lopez-Gil, whose nervous demeanor had led to his airport arrest, this strange case got even stranger. The law that governs sentencing in federal cases, the Sentencing Reform Act of 1984, did not permit the judge to hand down a sentence that he thought fit the crime and the offender. Rather, he was required to focus on and decide two questions of legal and pharmacological esoterica: ( 1 ) whether the weight of the cocaine that Lopez-Gil had tried to smuggle equaled the net weight of the drugs after extraction from the fiberglass panels or the gross weight of the panels; and (2) whether the cocaine that was ultimately extracted from Lopez-Gil's suitcase should be considered "cocaine base" or regular old cocaine. (The cocaine was in its "base" form, meaning it had not yet been refined into pure powder, or cocaine hydrochloride. While the Federal Sentencing Guidelines in effect at the time called for much stiffer penalties for smuggling "cocaine base," it was unclear whether these penalties were meant to apply to all cocaine base or just the most inimical type, the deadly "crack" cocaine.) Riding on these decisions was well more than a decade of Lopez-Gil's life. On the first question, the Federal Sentencing Guidelines, which went into effect on November 1, 1987, mandated a prison sentence that was at least two years longer for the greater quantity of cocaine. And, on the second, the guidelines required a prison sentence that was more than a dozen years longer if the drugs were considered "cocaine base."

Nearly three years after his arrest, Lopez-Gil's sentence is still not final, and the case has gone up and down on appeal several times. While the First Circuit Court of Appeals in Boston has ruled that the sentence must be based on the gross weight of the suitcase panels and that "cocaine base" includes more than "crack," the matter has been sent back to the sentencing judge to determine whether the "base" form of cocaine here is "cocaine base," as that term was used in the guidelines. When Lopez-Gil is ultimately sentenced, while the sentencing guidelines will require the judge to answer the bizarre questions posed above, they will not permit him to even ask the questions that a judge traditionally ponders before passing sentence: Is the sentence fair? What is its deterrent effect? What is its rehabilirarive effect? Does it provide just retribution? Does it sufficiently incapacitate a defendant who, if free, might commit additional crimes?

Although the Lopez-Gil case is an extreme (and soon-to-be corrected) example, it evidences a systemic myopia that is one of the key reasons why, nearly six years after the noble guidelines experiment began, I have joined the ranks of those who believe that the guidelines sentencing scheme is neither better nor fairer than the concededly imperfect system it replaced, in which federal judges had virtually unfettered discretion to hand down sentences that fell anywhere between the minimums and maximums set out in the statute that had been violated.

According to Justice Department statistics, in recent years more than 80 percent of federal criminal cases have resulted in convictions, either after trial or as a result of guilty pleas. Thus, in the vast majority of federal cases--which involve more than 50,000 defendants a year--the most important issue is sentencing, and the Federal Sentencing Guidelines have effected the most significant changes in federal sentencing since the first federal criminal statute was enacted into law more than two hundred years ago.

The guidelines, which apply to virtually all federal offenses, superimpose onto the broad statutory ranges of penalties-- such as ten-years-to-life-in-prison for selling more than a kilogram (2.2 lbs.) of heroin and zero-to-twenty-five-years-inprison for armed bank robbery--a much narrower range of penalties that the judge must impose in any given case. In this fashion, the guidelines are not guidelines at all, for it is only in exceptional circumstances that a judge is allowed to depart from the sentencing range the guidelines dictate.

This sentencing range is determined by assigning points to the particular crime committed and then making all manner of adjustments for factors such as the defendant's role in the offense, whether he or she has "accepted responsibility" for his or her actions, whether a weapon was used in the commission of the crime, and whether the victim was especially vulnerable, to name just a few. In drug cases, the quantity of drugs is a big factor, and in all cases a defendant's "criminal history" is thrown into the mix. Because the guidelines require courts to quantify facts and assign them point values, judges find themselves having to resolve such off-the-wall questions as how to weigh the suitcase smuggled by Lopez-Gil.

The guidelines have thus shifted the focus in sentencing from the forest to the trees: from whether the ultimate sentence in any way reflects an appropriate punishment to a battle between defense lawyers and prosecutors over sentencing points. The result is that in what is perhaps the most gut-wrenching of all legal endeavors--the sentencing of a human being--lawyers and judges alike are reduced to bloodlessly parsing the Sentencing Guidelines Manual in the same way that tax lawyers dissect the intricacies of the Internal Revenue Code.

Of course, a fair criticism of the guidelines must take into account the problems in the previous sentencing law that led to the guidelines' "reform." The new guidelines were a response to perceived inequities in the sentences handed down by the nation' s more than eight hundred federal trial judges. Given broad sentencing options, different judges were meting out grossly disparate sentences in very similar cases. These differences were occurring not only between the different jurisdictions, but within them. In Brooklyn, New York, for example, where I worked as a federal prosecutor, a typical "mule" arrested at Kennedy Airport with a kilogram of cocaine would routinely be sentenced to five or six years by one judge, considered the toughest sentencer in the district. If the same defendant had the good fortune to have his or her case randomly assigned to the district's most lenient judge (who happened to sit in the very next courtroom), he or she would likely end up with a sentence of around eighteen months (at least before the mandatory minimum sentences for drug crimes came into effect). Whichever sentence one thinks is more appropriate, it is hard to argue against the unfairness of allowing such a significant disparity in sentences to turn on which judge happened to be assigned to the case.

The disparities, however, were not quite as dramatic as they at first appeared. Under the old law, federal defendants were generally eligible for parole after they had served about a third of their sentence. And so, the parole board would even things up somewhat by releasing those with relatively long sentences early, while holding onto those with relatively short sentences longer. Of course, this did not result in complete evenhandedness and led to the criticism that the parole board was, in effect, re-sentencing defendants.

Faced with sentencing disparities that offended a sense of fairness and the imperfect remedy of the parole board, Congress came up with the Sentencing Guidelines. Unfortunately, the cure has turned out to be worse than the disease, substituting one kind of disparity for another and generating a host of additional problems.

Under the present guidelines, for instance, there are almost always factual disputes that the judge must resolve, followed by a determination about the implication of the facts when they are applied to the standards set out in the guidelines. While it may be simple arithmetic to add up the points once a judge has decided on them, there is nothing simple---or precise--about translating a unique set of (sometimes disputed) facts into points in answering questions such as the following: Was the defendant a "minimal"player (minus 4 points), a "minor"player (minus 2 points), an "organizer," "leader," "manager" or "supervisor" (plus 2 to 4 points, depending on the circumstances), or none of the above (no adjustment)? Was the victim particularly "vulnerable" (plus 2 points)? Where a defendant is convicted of multiple counts, are the counts "closely related" so that the defendant does not get additional points for each count? Moreover, because the guidelines are so complex and contain many cross references, they are subject to numerous interpretations with respect to which guideline should apply and how the points should be calculated. In one case in which I was involved, the prosecutor, the defense counsel, and the probation department (which, as an arm of the court, makes the initial calculation for the court and the parties) each came up with a different interpretation and a different bottom line. The court settled on a fourth interpretation and on a calculation that was different from all of the other proposals.

Another reason the guidelines fail to meet their objective of uniform sentencing is because of contradictory interpretations given by the twelve different Federal Appeals Courts that collectively hear appeals from all the federal judicial districts in the country. Remember the Lopez-Gil case. The First Circuit Court of Appeals in Boston held that the sentencing judge should count the full weight of the suitcase panels in figuring the weight of the cocaine. At least three Appeals Courts have reached the exact opposite conclusion about whether the weight of the unusable portion of a drug mixture should be counted in determining the quantity of drugs. Thus, if Lopez-Gil had been arrested at an airport in Florida, rather than the one at which he was arrested in Puerto Rico, his sentence would almost certainly have been based on the net weight of the cocaine rather than the gross weight of the suitcase panels. Although the Supreme Court can ultimately decide conflicts between the Appeals Courts, its review in these matters is discretionary and the sheer volume of its caseload allows it to hear only a small fraction of cases where its review is sought. Thus, the Appeals Courts, which are required by law to hear virtually every federal criminal appeal that is taken, are often the final word on guidelines' interpretations for the federal districts that are in their jurisdictions.

Some of the controversies that don't make it to the Supreme Court are resolved by what is known as the Sentencing Commission. This permanent body, which drafted the first set of guidelines and constantly monitors guidelines' sentencing nationally, proposes hundreds of amendments every year or so that go into effect unless Congress blocks them. Indeed, the Sentencing Commission's latest round of amendments, set to take effect this November 1, resolve the Lopez-Gil issues by mandating that in the future, "cocaine base" will mean only "crack" and that the unusable portion of a drug mixture, such as the fiberglass in Lopez-Gil's suitcase, will not be counted in the weight of the drugs. But this constant upgrading has created its own problems. While the amendments make the guidelines adaptive, they also make them less user-friendly. The parties have to look back through layers of amendments to find the state-of-the-art at the time-of-the-crime. (The current published edition of the guidelines runs to nearly four hundred pages; the amendments add a hefty three hundred pages.) Then there's the debate over which guideline applies: the old or the new? In any event, as every lawyer knows, you cannot write a code to cover every factual permutation. Thus, while the Sentencing Commission can arbitrate how certain recurring fact patterns should be scored under the guidelines, many (if not most) cases do not fit into such a mold.

One of the harsher criticisms leveled at the guidelines comes from the federal bench. Many federal judges believe that the guidelines give prosecutors more say in sentencing than they have ever had, and in this way not only trample on what traditionally was the judges' domain, but create even more disparity in sentencing. The prosecutors exercise this power because by deciding what crime to charge, in many cases they control the direction of the guidelines' analysis. For example, in the case of a first-time offender who illegally ships military weapons to a prohibited country by providing the government with false documents, if the prosecution charges that defendant with illegally exporting arms, the minimum guidelines' sentence is about three-and-a-half years in prison. But if the charge is falsifying government forms, the maximum guidelines' sentence is only a year-and-a-half in prison. While the guidelines do include certain "relevant conduct" in their calculus and, in limited circumstances, direct the court to apply the specific guideline that relates to the most-serious crime that was committed rather than the crime that has been charged, there is no question that in many cases--like the one involving the sale of illegal arms-- the government can largely control the sentence by its selection of charges.

All this is not to say that the Sentencing Guidelines are without their champions, one of the most notable being the Department of Justice. Some supporters argue, using certain statistics of their choosing, that notwithstanding the problems, the guidelines have still led to a system of more-uniform sentencing. In addition, those who believe that in the past the criminal justice system treated criminals too leniently point out that the guidelines have resulted in generally longer sentences, particularly in the area of white-collar crime. Also, the availability of "downward departures" for defendants who have provided "substantial assistance" to the government has given prosecutors a powerful tool for persuading (or, some critics say, coercing) defendants to cooperate, which in turn has resulted in more convictions of other wrongdoers.

Like most matters of complexity, the debate over the Federal Sentencing Guidelines does not lend itself to easy resolution. Given that the guidelines are the result of a great deal of hard work by a number of very intelligent people, it is hardly surprising that they have their supporters and their good points.

Yet, in my view, the guidelines fail because they seek to achieve an unobtainable objective: uniformity of federal sentences. Virtually every case and every defendant is different, making uniformity undefinable, let alone elusive. By taking the most difficult decision a judge has to make in a criminal case-one that calls upon all the judge's ability, experience, and wisdom-- and reducing it to a mathematical formula, the guidelines substitute one imperfect system for another.

Given the high quality of most----although certainly not all-- federal judges, I would rather entrust them with the sentencing decision, with the hope that, in most cases, the sentences they mete out are those most likely to be appropriate and fair. Toward this end, all federal district courts could put into place a program that some already employ: creating a sentencing panel for each case. The panel would consist of the sentencing judge and two of her or his colleagues. Prior to sentencing, all three judges would review and discuss the case, giving the sentencing judge the benefit of the other judges' opinions before passing sentence. The parole board would continue to serve in its admittedly imperfect role of providing a national perspective on sentences.

The Federal Sentencing Guidelines were a well-intentioned response to a real problem. The guidelines and those who drafted them deserve nothing but respect. Unfortunately, more than half a decade of experience under the guidelines has demonstrated that, when it comes to the grim business of determining the punishment for those who have broken society's rules, facts and people are not easily reduced to formulas. While there is some facial appeal to a scientific-sounding system that assigns sentences based on point totals, getting to those totals has proven to be a very imprecise and unwieldy venture.

PETER E. BALL is a former federal prosecutor who currently practices criminal and civil litigation at the law firm of Hill & Barlow in Boston, Massachusetts.

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