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Rules aimed at consistent sentencings

Author(s): MARK LAMBERT Date: August 19, 1990 Section: NKWS

While federal judges often seem to have broad powers, there's one important area of the law in which hooks and mathematical formulas, not judges, are making crucial decisions ~ sentencing for criminals. People who commit federal crimes after Nov. 1, 1987, are subject to sentencing under federal guidelines, a set of rules and recipes that numerically assess the seriousness of the crime and the remorsefulness of the criminal.

Although several criminal cases in federal courts still are not covered under the guidelines because the crimes occurred before the guidelines went into effect, federal judges around the country and in Baton Rouge are starting to see more cases in which the guidelines apply.

One of the main objectives of the guidelines is to produce more consistency in sentencing for people accused of the same crimes. Theoretically, a person convicted in federal court of mail fraud in California should receive the same sentence as the person convicted of the same crime under similar circumstances in Baton Rouge.

Another objective is to provide more reality in sentencing, U.S. District Judge John V. Parker said.

In the past, if a person was convicted of a crime and sentenced to spend three years in prison, he could be released after having served only 12 months because of parole opportunities.

Under the guidelines, however, parole is a thing of the past. Time sentenced equals time served.

"The reality comes in when a person is sentenced to 12 months; they arc going to be in prison for 12 months," Parker said. "1 believe that Congress has finally realized that rehabilitation in prison doesn't work."

U.S. Attorney Raymond Lamonica said sentences handed out under the guidelines may appear to be more lenient because the public is used to "old-time sentences."

For example, he said, while there was some criticism that John and Naaman Eicher, principals of now-defunct Champion Insurance Co., received "only" 46 months in jail for crimes related to the downfall of the company, people should realize that the two men will spend the entire 46 months in prison with no chance of parole.

"It's the equivalent of an old-time, 12-year sentence," Lamonica said. "That's an important point, that these people will be in jail for 46 months."

Points then are added or subtracted for factors such as acceptance of responsibility, vulnerability of the victim, role of the defendant in the crime and whether the defendant abused a position of trust.

After the points are added and subtracted to the offense level, the judge factors in the defendant's criminal history. Based on the final offense level and criminal history category, the judge simply consults a table to find a range of prison time to which the defendant can be sentenced.

Judges can depart from the range but must give reasons for the departure at the time of sentencing. If the judge departs from the guidelines by increasing the sentence, the defense can appeal; if he departs down, the government can appeal.

Although the guidelines take some of the guesswork out of criminal sentencing, their effectiveness and fairness are subjects of dispute among prosecutors, judges and defense attorneys.

"Overall, I think they're good because it creates some order where there was no order," Lamonica said.

"1 think it's a mess, frankly," defense attorney John DiOiulio said. "They are so complicated, they can be manipulated by different parties, and the prosecutors and defense lawyers don't agree on what the guidelines say."

Nathan Fisher, who defended John Eicher in federal court, said the guidelines "encourage people to snitch on other people."

"Now, you have to begin to deal with the guidelines at the inception of an investigation, not at arrest," Fisher said. "If you don't begin to cooperate at the beginning of an investigation, you can have points added to your score."

Defense attorney Thomas Damico said he believes the federal court system will begin to see more criminal cases taken to trial because the guidelines give relatively little credit to persons who plead guilty.

"As time goes on, there will be fewer and fewer pre-guideline cases, and defendants will go to trial because they have nothing to lose," Damico said. "If a defendant looks at the guidelines and sees he only gets credited with two points for accepting responsibility, we'll see more trials, and the courts will get clogged."

While judges used to gaze into the eyes of criminals to search their souls when deciding on a just sentence, they're now flipping through thick binders and punching numbers into calculators to decide people's fates, defense attorneys complain.

While criminals should be prosecuted, defense lawyers who handle federal cases said the guidelines do not take into account the individual who committed the crime.

"Little check marks on an objective list just aren't always fair," Anthony Marabella said. "Theoretically, the guidelines are supposed to give some consistency in sentences. But just because two people

"1 think the inflexibility of the guidelines is the most difficult problem defense attorneys are faced with," he said. "It's just impossible for a set of rules to address every mitigating circumstance and factor. I prefer the human touch of the judge, and I think the guidelines just take away that human touch,"

Defense attorney Frank Holthaus was even more critical of the guidelines.

"I think it's a broad step toward a Soviet system," Holthaus said. "It's

an attempt to do what the Soviets found hasn't worked. Now we have

a nameless, faceless, sentencing committee somewhere in the bowels

of a federal building in Washington, making decisions that a judge

should be making,"

Holthaus said his main criticism of the guidelines is that it "takes away the judge's responsibility and discretion."

However, Lamonica pointed out that the guidelines do give judges discretion, citing the provisions for departure. He characterized the guidelines as giving judges "controlled discretion."

Parker said he believes that guideline sentences are "more objectively handled because the factors are characterized," although he admitted that working with all of the factors involved in the computations can "get pretty complex."

While criminal defense attorneys complain that the sentences under the guidelines are too stringent, Parker said he believes that, "in some instances, the guidelines are not severe enough,

"1 think most of the guidelines produce a just sentence, but in some cases, they're too lax."

Still, Parker said the guidelines do not allow him to consider some things he can consider in pre-guideline cases. For example, the guidelines "don't take into account if he goes to church, loves his mother, pays his bills on time."

"What the public doesn't realize is that type of thing, the "love-your-mother' letters I receive on behalf of defendants, don't matter worth a damn," he said.

Parker also said he realizes the guidelines have been met with a lot of opposition, but he said those objections have more to do with human nature than with mechanical problems with the guidelines.

"All of us are human beings, and all human beings, with rare exceptions, resist change," the judge said. "Most lawyers and judges have resisted the guidelines, but all of us will learn to live with them."

Copyright 1990 Capital City Press, Baton Rouge, La.

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