All but lost amid the furor and speculation in the wake of the US Supreme Court's Blakely decision (see story this issue) last Thursday was a ruling three days earlier by a US Circuit Court judge that federal sentencing guidelines are unconstitutional because they unfairly limit judges' discretion. The guidelines give too much power to prosecutors, pervert the federal justice system by turning it into a plea bargain factory, and result in harsh and unfair sentences, 1st US Circuit Court Senior Judge William Young wrote in a scathing 174-page opinion in a series of drug cases.

Under the guideline system, federal judges are virtually relegated to the role of checking boxes in a sentencing grid mandated by Congress and implemented by the US Sentencing Commission. The guidelines, which were originally seen as reforms removing disparities in sentencing, mandate sentences based on factors such as seriousness of the crime, criminal background, acceptance of responsibility, and "cooperation with authorities," a polite term for snitching on others to gain a shorter sentence for oneself. As DRCNet has reported (http://stopthedrugwar.org/chronicle/330/kennedy.shtml most recently), the federal judiciary has grown increasingly vocal in its criticism of the system.

Young's decision is not binding and is likely to be appealed, but until and if it is overturned, it can be cited by other federal judges. Coming on the heels of the American Bar Association's report calling for an end to mandatory minimum sentences (http://stopthedrugwar.org/chronicle/343/aba.shtml), and the US Supreme Court's Blakely decision, which threatens to unravel the federal sentencing guidelines, Judge Young's ruling is one more augur that that the end is drawing near for a system that has engorged federal prisons for nearly two decades.

"Judge Young's decision comes in the context of a week of ferment for sentencing in general," said Marc Mauer, executive director of the Sentencing Project (http://www.sentencingproject.org), a group devoted to finding alternatives to imprisonment. "The federal guidelines have been a challenge for years, and Judge Young's opinion shows this is up for grabs," Mauer told DRCNet. "He is a well-respected judge, and he is saying he believes the entire system does not make sense and is unconstitutional. People are very much paying attention to this because Judge Young is raising issues that a lot of people have been thinking about."

In his decision, Young amalgamated five drug cases, excoriating the Justice Department for demanding multi-decade sentences for small-timers, offering a sweet deal to a confessed multiple killer and gang leader who offered up the others, and sentencing a crack-addicted teenage mother to a lengthy prison term followed by deportation even though she testified against a major drug dealer. The cases involved punishing defendants who wanted trials, illegal bargaining by prosecutors, bargains with cold-blooded killers, and "such callous indifference to innocent human life that it would gag any fair-minded observer," Young wrote.

Judge Young gave eloquent expression to the sense of judicial unease over sentencing issues in a sweeping critique portraying federal practices as fundamentally corrupt. "The Justice Department is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate," wrote Young, "that the focus of the entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that it is heavily rigged against the citizen... Today the Department's efforts at law enforcement depend on plea bargaining as never before."

As Young pointed out in his opinion, 97% of federal criminal cases are resolved by plea bargains. Defendants who insist on their right to a jury trial end up with sentences six times as long as those who play the plea bargain game, Young wrote, because US Attorneys manipulate charges and ignore or emphasize facts (such as possession of a gun or a certain quantity of drugs) in order to force pleas and punish people who insist on their innocence.

Defendants are then sentenced under the guidelines, but, Young argued, with individual judges no more than "weak reeds" before the institutional weight of the Justice Department, those guidelines and their sentencing factors offer little protection to defendants or leeway for judges. With "real offense" sentencing, where judges consider facts unproven at trial during sentencing, the situation becomes absolutely bizarre, Young wrote. "The result has been the routine sentencing of offenders on the basis of crimes with which they have never been charged, the commission of which they deny, without any evidence having ever been proffered against them," read his opinion. "Even more bizarre, federal criminal sentences today may be based on conduct of which a defendant has been formally acquitted."

As a consequence of unbridled prosecutorial power, Young held, defendants were being unconstitutionally deprived of their right to due process. In reaching that conclusion he relied on the Supreme Court's 2000 decision in Apprendi v. New Jersey (http://stopthedrugwar.org/chronicle/147/fedstremble.shtml), where the court held that judges may not enhance sentences beyond the statutory maximum unless those enhancing "facts" are proven by a jury. Apprendi was also the controlling case in the Supreme Court's decision in Blakely last week, a case that Young noted was pondering "a similar question."

"Judge Young's opinion is a very careful analysis of the way the federal criminal justice system has come to work," said Bjorn Lang, an assistant federal public defender in Concord, New Hampshire, which is in Young's judicial district. "This opinion reflects a lot of work and a lot of thought by a very experienced judge. I hope that somebody with power, such as Congress, reads it and gives it the serious thought it deserves," Lang told DRCNet, emphasizing that he was expressing only his personal opinion, not that of the federal public defenders' office.

Judge Young's opinion should also be required reading in law schools. It is available online at:
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=young/pdf/supersentencing%20memo.pdf

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