Sentencing Examples: How Disparity Affects Sentencing Practices

Is it possible for someone to receive a longer prison sentence for drug possession than for murder? Yes. Is it true that if a drug dealer’s house stood just 100 feet farther from a school, he would have received a drastically shorter sentence? Yes. In fact, sentencing examples like this are present everywhere.

Disparity in criminal sentencing has always been a thorn in the side of our judicial system since time immemorial. Of course, there have been many attempts to alleviate the problem, such as mandatory minimums, sentencing guidelines, and complicated sentencing formulas. Yet, judges do have discretion in sentencing defendants, even when there are attempts to limit that discretion.

Understanding some sentencing examples in real-world cases can give helpful perspective to the problem. It also may suggest some solutions as well. But first, let us discuss some sentencing basics.

The Basics of Criminal Sentencing

Following a criminal conviction, from a guilty plea or jury verdict, a criminal case will move to the sentencing phase. Typically, the judge will schedule a time after the trial or plea to have a sentencing hearing. At that hearing, the judge will hear the positions of the parties and the defendant, and may possibly hear victim statements. Then, the judge will impose a sentence meant to fit the crime.

The types of punishments the judge can impose include the following:

• Incarceration in prison
• Monetary fines
• Probation
• A suspended sentence (which means that the defendant does not go to prison immediately, but will only go to prison if he or she violates certain conditions)
• Restitution (which is payment of money to reimburse a victim for some type of loss)
• Community service
• Treatment – such as drug or alcohol treatment, or anger management
• (In some states) the death penalty

A sentencing judge typically has a range of sentences permitted by statute based on the crime committed. Yet, the judge can also consider case-specific factors such as:

• The defendant’s criminal history
• The nature of the crime
• The impact on the victim or victims, if any.
• The defendant’s personal, economic, and social circumstances; and
• The defendant’s feelings of remorse.

The Federal Sentencing Guidelines

In an attempt to establish a uniform set of sentencing rules, the United States Sentencing Commission (created in 1984) established the Federal Sentencing Guidelines. The purpose of the Guidelines was to minimize sentencing disparities that existed from court to court, and jurisdiction to jurisdiction. The Guidelines were initially styled as mandatory, but ultimately the U.S. Supreme Court in 2005 determined that they should only be advisory so as not to offend the Sixth Amendment.

The Guidelines determine sentences based primarily on the facts of the crime (the “offense conduct”) and the defendant’s criminal history. With those two factors, the judge then refers to a Sentencing Table, which provides a sentencing range. For example, a defendant whose offense conduct puts him at a level 22, and a criminal history category of I, the recommended sentence is 41-51 months. With the same offense conduct but a criminal history category of VI (a lengthy criminal history) the recommended sentence is 84-105 months.

The Guidelines then allow for reductions or increases in time to be served based on specific facts. For example, reductions are allowed when a defendant accepts responsibility, and increases are allowed for hate crimes or particularly vulnerable victims. Similarly, factual circumstances of a case may also provide for downward or upward departures of the offense level number.

Sentencing Examples

Having some overview of sentencing procedure and the Federal Sentencing Guidelines, let’s now take a look at a few sentencing examples from real-world federal cases. To begin, here are two fascinating cases decided by the U.S. Supreme Court.

• Gall v. United States (2007). Defendant Gall joined an ongoing “ecstasy” drug ring while in college. After seven months, he withdrew from the conspiracy. Once he left the conspiracy, he never sold or used illegal drugs, and he worked steadily after graduation. Three years later, he pleaded guilty for his participation in the drug ring.  The presentence report recommended a 30 to 37 month prison sentence for Gall, based on the Federal Sentencing Guidelines. The District Court, however, sentenced Gall to 36 months of probation. The judge reasoned that imprisonment was not necessary due to his voluntary withdrawal from the drug enterprise, his law-abiding post-offense conduct, and the fact that he was not a danger to society. The Eighth Circuit Court of Appeals reversed the sentence, finding that it departed too far from the Federal Sentencing Guidelines. The U.S. Supreme Court, however, reinstated the District Court’s probationary sentence, finding that the Guidelines are only advisory, and that the District Court’s sentence was reasonable.
• Kimbrough v. United States (2007). Under federal law and the Guidelines a drug dealer who deals in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine. Defendant Kimbrough pleaded guilty to drug distribution offenses involving crack cocaine. The District Court recognized that Kimbrough was facing 19 to 22 years for his crimes, but would only be facing 8 to 9 years if he was dealing in powder cocaine, based on the Guidelines.  Noting the unfair effect the Guidelines had on crimes involving crack, the court sentenced Kimbrough to 15 years in prison. The Fourth Circuit Court of Appeals vacated the sentence, finding that the court did not follow the Guidelines. The U.S. Supreme Court reinstated the District Court’s sentence, again noting that the Guidelines were only advisory, that the 100 to 1 ratio of powder cocaine to crack cocaine crimes was unfair, and that the District Court’s sentence was reasonable.

Here are some sentencing examples from other federal cases that are cause for concern because the punishment appears clearly excessive given the circumstances.

• Chris Young. Born into extreme poverty and a broken home, Chris Young started selling drugs as a teenager. He was ultimately picked up in a drug sweep with 30 other people. He was initially offered a plea deal of 14 years in prison. He rejected it because it was more than some of the more serious offenders in the sweep were receiving. As he neared trial, the plea offers only increased. He was found guilty at trial, and the judge was forced to sentence him to a mandatory life in prison. The judge acknowledged that Chris was a low level dealer, “barely on the totem pole,” but was hamstrung by the federal mandatory minimum.
• Jodi Richter. Diagnosed as bipolar at age 12, with an early marriage and two kids, Jodi began a spiraling addiction to methamphetamine. Although she earned a college degree and became a nurse, her addiction ultimately led to her arrest for being a part of a methamphetamine enterprise. Her involvement in the enterprise was minor, but she was tried, convicted, and sentenced to 15 years in prison. The harsh sentence came about in part because of two prior possession charges.
• Arlana Moore. Suffering from depression as a teenager, Arlana was prescribed “weight loss” drugs that were actually similar to methamphetamine. That led to a methamphetamine addiction. She was twice charged with possession offenses and given probation both times. Her addiction continued, and eventually she began supplying her dealer with pseudoephedrine pills from the pharmacy, which her dealer turned into meth. Her dealer, however, was under federal investigation. She was ultimately indicted for involvement in a methamphetamine conspiracy. Because of her two prior convictions, she received a mandatory life sentence without parole in 2010. In October 2016, President Obama commuted her sentence. She will be released in the Fall of 2018.

Summing Up

The sentencing examples above, particularly Chris, Jodi, and Arlana’s stories put a fine point on several important issues of the day. First, it demonstrates the devastating impact mandatory minimums and sentencing guidelines can have on people’s lives.

Second, they show how difficult it is to both ensure uniform fairness in sentencing, but also allow judges the discretion to fashion a punishment that accounts for a defendant’s circumstances. Should a person like Arlana really be put away for life?

Finally, the sentencing examples demonstrate how drug addiction is not a criminal problem, but rather a health problem. Addiction cannot be solved solely with incarceration. Treatment may have some role to play.

Overall, President Obama’s commutation of Arlana’s life sentence provides hope for other defendants.

Brandon Sample is an experienced federal criminal defense attorney who handles federal sentencing matters across the United States. For a free consultation, please call 802-444-HELP or submit an online inquiry. Sentencing Examples | Criminal Sentencing | Sentencing.net