January 3, 2005

A Sentence or Two

by Armen

I was pointed to an article by Gary Fields in Dec. 30th WSJ (paid subscription required, or see here if you have access to ProQuest thorugh a proxy server). The gist: more crimes are prosecuted under Federal laws than state because Feds have tougher sentencing.

There are a couple of angles in the article that I want to take up, so you'll have to excuse the jumping around.

Clever use of interstate commerce

In the first part of the article, Fields writes:

"Many of the laws draw on the federal government's constitutional authority to regulate interstate commerce. Proving a link to interstate commerce is rarely a problem. Most gun crimes involve a weapon that was made in a different state and most drug deals involve contraband that came from out of state or from abroad. In Mr. McFarland's case, the federal prosecutors' theory was that the money he stole could have been used by the stores in Fort Worth to buy out- of-state goods."

As a labeled bleeding heart liberal, I'm outraged that criminals are being sent to prison (errr... I mean getting sentences higher than they deserve). Conservatives and Libertarians ought to notice the vast expansion of Federal power. The states' rights conscious Rehnquist Court may also be worried about such loose interpretation of interstate commerce, see e.g. United States v. Lopez or United States v. Morrison. Obviously there are people who research these things for a living so I'm not going to say too much, but I have a few thoughts. Clearly a carte blanche interpretation of the commerce clause would pretty much defeat the purpose of federalism. On the other hand, there are clear instances where local laws are not sufficient to serve justice. For example, in the early '90s when the four officers involved in the Rodney King beating were acquitted in state court, they were tried in U.S. District Court for civil rights violations. I'm sure there are some outliers who think that this was a great travesty that reinforced "the man's" power to meddle in local affairs, but for the most part I think we can agree this was an appropriate instance of the Feds coming in. But to substitue for the inadequacies of local legislatures (if any) is a bit questionable. Which brings us to the rest of the article...

Disparities in Sentencing

Apparently the greatest reason why local officials actively seek out Fed prosecutions is because the mandatory Fed sentencing guidelines are quite harsher than state mandatory minimums. Related to the above rant about federalism, this justification is really troubling.

1. Local laws are more responsive to the local population's views of just desert. If justice really IS the goal, then why not apply those laws? Again there is a an element of fine line here where I think there are instances where local laws, even if embraced by the local population, are inadequate.

2. The mentality behind these prosecutions is the "I'm going to get the highest sentence possible" mindset. While I can see readers out there thinking there is nothing wrong with this, in my own posts I've criticized such a position with the support of the traditionally tough-on-criminals Fifth Circuit:

"The government�s brief, which argued stridently that every one of the district court�s decisions actions was justified, is surprising to this court, because the responsibility of the Department of Justice, in its representation of the United States in criminal proceedings, is to do justice and to see to it that the law is followed, not to obtain the highest possible sentence in every case." -- United States v. Andrews.

I just cannot comprehend this. If you're a local DA why are you actively trying to avoid prosecuting someone under your own laws? Am I missing something in the sense that the DA's job is something broad in a superhero sort of way, such as reducing crime or fighting bad guys?

3. Politics, local or otherwise. As Fields writes:

[Former felon found bullet in home he was staying and refurbishing and placed it in a box] "Mr. Yirkovsky wasn't arrested that day. Instead, local police conferred with the state prosecutor and determined that Iowa law didn't prohibit a convicted felon from possessing ammunition. Federal law did, however, and the case ended up on the U.S. attorney's desk.

In hectic big-city jurisdictions, federal prosecutors probably wouldn't have bothered with the case. In Cedar Rapids, though, the U.S. government decided to get involved. Patrick J. Reinert, the assistant U.S. attorney who prosecuted the case, says it's worthwhile for the federal government to go after repeat criminals who don't seem to have rehabilitated themselves -- especially if federal law provides the easiest route to prosecution."

Again, I really don't see a good or even decent justification for using Fed law just because it has tougher sentences. Which takes us to the third concern.


I won't even pretend to know a damn thing about the Blakely decision, but Fields writes, "The gap between federal and state sentences could expand if the Supreme Court strikes down guidelines that currently govern most federal sentences." Huh? So far as I understood the decision I thought it was about using evidence not introduced at trial to go above the sentencing guidelines of Washington State. If that is in fact the meaning of Blakely, how is this likely to increase sentences (as opposed to reducing sentences or keeping them the same)? Any and all of those three possibilities are equally likely to occur depending on what evidence is introduced at trial. This summary seems to say the same thing.

Fields, however, is talking more about the current cases before the SCOTUS regarding the Fed sentencing guidlines. Even then, the question before the Court is: "whether the imposition of a Guidelines sentence based on a determination of fact that is neither found by a jury nor admitted by a defendant violates the Sixth Amendment to the United States Constitution." That is, the existence of sentencing guidelines is not at issue here but the facts used to increase a sentence. So we're once again back to square one. There is really no way that any SCOTUS ruling resulting from Blakely can allow judges to go higher than the sentences currently prescribed.

But I continue to plead ignorance.

January 3, 2005 4:10 AM | TrackBack

"I just cannot comprehend this. If you're a local DA why are you actively trying to avoid prosecuting someone under your own laws? Am I missing something in the sense that the DA's job is something broad in a superhero sort of way, such as reducing crime or fighting bad guys?" It's prosecutorial discretion. If all the laws were enforced all the time, everyone would be in jail, including the gaurds and the judges. The systems works by putting some of the people in jail some of the time, usually based on if they are poor or black.

Posted by: arbitraryaardvark at January 4, 2005 12:31 PM

friend in federal prison awaiting sentencing 7/24/2006 has prior sales of marijuana in california. needs lawyer to file a post conviction relief

Posted by: SONIA LOPEZ at July 1, 2006 3:39 AM
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