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Gregory Scarborough Jr. admitted to breaking into 38 homes in Northwest Washington over a four-month period and stealing thousands of dollars’ worth of laptop computers, jewelry, guitars, stereos, and other possessions. On Nov. 7, D.C. Superior Court Judge Susan Winfield upset police, prosecutors, and some residents when she gave the 25-year-old Scarborough a chance at drug treatment, rather than jail time. “It is absolutely outrageous that he would be given probation,” says D.C. Metropolitan Police Chief Charles Ramsey, noting that police suspect Scarborough of breaking into more than a hundred D.C. homes. “There is no deterrence if these kinds of sentences are handed down.” Judicial discretion has long been a flash point in the criminal justice system nationwide, with many states establishing guidelines like those in the federal system that require judges to hand down penalties within a specific range based upon the crime and the perpetrator’s criminal history. In the District, no such guidelines exist, and judges have considerable leeway when sentencing defendants. That likely is about to change. On Nov. 24, the D.C. Advisory Commission on Sentencing, a panel made up of criminal justice officials and D.C. residents, is expected to vote in favor of a plan that would bring some sort of guidelines policy to D.C. Superior Court. In the works for the past three years, the plan is still being drafted and debated. A December 2002 report by the commission stated it would recommend a “voluntary” guideline system. A range of penalties will be set up for each offense and will take into account criminal history and severity of the crime. The system will allow Superior Court judges to depart from a given range, however, as long as a reason for doing so is provided in writing or from the bench. Proposed sentencing ranges have yet to be finalized, but a sentencing panel report last year claimed that “[t]he ranges would be wide, but not so wide as to defeat the goals of uniformity and proportionality.” The commission is scheduled to send its recommended guidelines to the D.C. Council at the end of this month. Currently, there are just a handful of crimes — violent crimes such as murder, carjacking, and certain gun charges — for which punishments are mandated. If the crime does not fall into one of these mandatory minimum categories, there is nothing to prevent judges from giving a defendant probation regardless of criminal history or number of offenses. Some defense lawyers and criminal justice officials say it is unlikely that guidelines will dramatically change sentencing patterns in Superior Court, noting that the “voluntary” system being proposed was a way to get the local bench, which has three of its judges on the sentencing panel, to accept them. Others, however, say it will probably increase incarceration time for defendants. “Generally speaking, guidelines do have an impact — even in a voluntary guidelines system,” says defense lawyer Michele Roberts, a partner at D.C.’s Shea & Gardner and a member of the sentencing panel. Roberts notes that most judges in Maryland, which has a voluntary system, routinely follow the guidelines. And some federal practitioners warn that D.C. lawmakers should be careful when implementing guidelines so as not to deprive judges of too much sentencing authority. “We think the federal sentencing guidelines are a disaster,” says white collar criminal defense lawyer Michael Madigan. “They take all the discretion away from judges and really put it in the hands of prosecutors.” D.C. Superior Court Chief Judge Rufus King III says he is looking forward to seeing what the sentencing panel comes up with, but declines further comment on the subject. Kim Hunt, executive director of the sentencing panel, declines comment on the commission’s findings. DRUG TREATMENT, NOT JAIL TIME It is unclear whether Winfield would have sentenced Gregory Scarborough differently had such guidelines been in effect in Superior Court. Julia Leighton, general counsel of the D.C. Public Defender Service, says the Scarborough case should not drive the debate over guidelines when it reaches the D.C. Council. “Good policy and good legislation is not based on individual incidents or anecdotal evidence,” Leighton says, adding that Winfield is not known for handing out light sentences. Scarborough pleaded guilty to three felony burglary charges and a fourth felony charge — receiving stolen property. Under D.C. law, the maximum penalty he faced was 52 years. Scarborough had two prior convictions — one for felony gun possession and one for a misdemeanor drug charge. According to a court transcript, Winfield sentenced Scarborough to 18 years in jail, but suspended the sentence because she was, in part, concerned that he would not get decent drug treatment in prison. “I am going to give you drug treatment because I am convinced, when I read your report — the presentence report, even the victim impact statement — that it would be better for everybody if you could stop using drugs,” Winfield said in court. The judge also told the defendant that if he violates his probation — just once — he will serve jail time. Defense lawyers say it is not unusual for a defendant with a drug problem to find himself in front of a judge again. A hearing is scheduled for Nov. 21 to determine what treatment program Scarborough can be admitted to. Leighton, whose agency represents Scarborough, says drug treatment is an important component in sentencing and that Winfield correctly took into account Scarborough’s cooperation with police. Roberts says she thinks Winfield’s sentence is too harsh for a defendant without a violent past. “People have no appreciation of what that sentence means,” Roberts says. “I think the 18-year sentence Susan imposed is outrageous.” Other criminal justice officials and defense lawyers blame the U.S. Attorney’s Office for not making a stronger plea for jail time by having more victims come forward to testify at Scarborough’s sentencing. Channing Phillips, chief of staff to U.S. Attorney Roscoe Howard Jr., declines comment, saying the government will let the court transcript speak for itself. At sentencing, Assistant U.S. Attorney Diane Lucas requested a lengthy sentence. “[T]his is something that frankly, he should go away for very many, many, many years on,” Lucas said. “And, certainly, I think this can be accomplished.” D.C. public safety activist John Aravosis says he does not understand Winfield’s sentence. “There just aren’t any mitigating circumstances for 38 burglaries,” says Aravosis, who lives in one of the neighborhoods victimized by Scarborough. The discussion among some residents over the Scarborough case has spilled over into speculation about what they can do about a criminal sentence they don’t like. One D.C. community Web site posted the phone number to the chambers of Judge Noel Kramer, who presides over Superior Court’s Criminal Division, as a place to lodge complaints. Superior Court spokesperson Leah Gurowitz says fewer than 10 people contacted Winfield after the sentence and points out that just one victim impact statement was filed with the court. Kramer says she is aware of only one complaint called into her chambers thus far. Winfield referred calls to Gurowitz, who says the judge cannot comment on a pending matter. CONTROVERSIAL RULINGS The Scarborough case has put D.C. sentencing policy in the news for the second time in recent months. In June, Winfield handed down a controversial sentence to a defendant who pleaded guilty to shooting D.C. police Detective Anthony McGee. In that case, Winfield sentenced Bernard Johnson to 12 years behind bars for aggravated assault and possession of a firearm while committing a violent crime. The judge then suspended five years of the sentence — leaving seven for Johnson to serve. McGee’s police partner, Stephen McDonald, wrote a letter to the editor of The Washington Post, noting that the defendant, who had two prior felony convictions for gun possession crimes, faced a mandatory five years behind bars on the gun charge alone. To McDonald, it appeared that Winfield gave Johnson just two additional years for shooting a police officer. “I was in shock,” says McDonald, noting that McGee had to have a metal rod inserted into his leg. “I went to the prosecutor and said, ‘Did I hear that right?’ “ Chief Ramsey says he wrote a letter to Superior Court Chief Judge King explaining his concern over the sentence, noting that such a sentence sends the wrong message to his officers and criminals. “I understand judges have a tremendous amount of discretion and I support that,” Ramsey says. “I just think it’s abused at times.” While Winfield has made some controversial decisions in her 19 years on the bench, both defense lawyers and prosecutors say the judge is not known for handing out light sentences. “I’d say she’s pretty fair,” says D.C. defense lawyer Betty Ballester, president of the D.C. Superior Court Trial Lawyers Association. Madigan, a partner at the D.C. office of Akin Gump Strauss Hauer & Feld who says he has known Winfield for many years, says she “is not a ‘let all the criminals free’ judge.” Winfield, 55, was appointed to the D.C. bench in 1984 by President Ronald Reagan. Prior to joining the bench, Winfield was in private practice for two years in Boston before coming to the District to work as a fraud prosecutor with the Department of Justice. In 1979, she joined the U.S. Attorney’s Office in the District, where for the next five years she prosecuted murder and rape cases and handled special prosecutions of repeat felony and misdemeanor defendants. Shortly before being picked for the bench, Winfield became deputy chief of the Felony Trial Division. On the bench, Winfield initially gained a reputation as being a tough sentencer, as many former prosecutors do. But just as quickly Winfield became known as someone staunchly committed to protecting defendants’ rights. Some of Winfield’s rulings — particularly those rendered while working in the court’s Family Division — have generated controversy. In 1994, Winfield upset gay rights activists when she ruled against two gay men trying to adopt a 2-1/2-year-old girl. At the time, two other judges had approved such adoptions. Winfield’s ruling was later reversed by the D.C. Court of Appeals. That same year, Winfield surprised child advocates when she ruled that a convicted child molester should be reunited with his daughter, despite recommendations from the city that the man’s parental rights be terminated. The D.C. Court of Appeals overturned that decision, as well. In 1997, Winfield again stunned child advocates and prosecutors when she ruled in a preliminary hearing that a man did not intentionally kill his child by cupping his hand over the infant’s mouth and nose. The ruling caused prosecutors to drop the murder case. In 1999, Winfield’s term on the D.C. bench was extended until 2014 by the D.C. Judicial Disabilities and Tenure Commission after reviewing her record and finding her “well-qualified.”

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