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Federal judges are handing down more sentences that fall below the ranges set by the U.S. sentencing guidelines, according to statistics compiled by the U.S. Sentencing Commission. Agency officials say that the increase in “downward departures” is due in large part to a surge in illegal-immigration cases. But members of Congress are accusing the federal judiciary of more general abuse of the 13-year-old guidelines, as well as the Justice Department for complicity in not appealing the vast majority of the cases. An Oct. 13 Senate hearing, ostensibly called to address the 17 percent increase in downward departures since 1989, paid special attention to the Justice Department’s reluctance to appeal such rulings. The last-minute hearing, complained one federal judge who requested anonymity, would probably not have happened were it not an election year. One sentencing expert says that judges still chafe under the guidelines despite a 1996 U.S. Supreme Court ruling widening their discretion. In Koon v. U.S., an appeal from the civil rights prosecution stemming from the 1991 Los Angeles Police Department attack on motorist Rodney King, the court held that appellate judges may give broad deference to trial court sentencing decisions. U.S. attorneys cite Koon as one of the reasons that they appeal few downward departures. “It’s clear that federal judges have been searching for ways to circumvent the strictness of the guidelines,” says Marc Mauer, assistant director of The Sentencing Project, a sentencing reform group in Washington, D.C. “They believe that there are far too many cases where they are overly constrained.” But the U.S. Sentencing Commission chairwoman, Judge Diana E. Murphy of the 8th U.S. Circuit Court of Appeals for the 8th Circuit, says that the case has assuaged the concerns of most federal judges. “The Koon case has done a lot to get judges to buy into the sentencing guideline system,” she says. DEPARTING MORE OFTEN According to the commission, 55,000 federal sentences were handed down in 1999. The number of defendants sentenced within the guideline ranges has been dropping steadily, from 71 percent in 1994 to 65 percent in 1999. Upward departures changed little, remaining below 1 percent. Some departures, labeled “substantial assistance,” are based on a defendant’s cooperation and a prosecutor’s request for a lesser sentence. Others, however, generally involve factors determined solely by the judge. Judges may go outside the prescribed range set for each offense by finding the existence of factors not addressed by the guidelines. The percentage of substantial-assistance departures actually declined by 1 percentage point between 1994 and 1999, to 19 percent of all federal sentences handed down. District courts in the 2nd and 9th circuits were responsible for most of the downward departures granted in 1999, with judges in California, Washington state and New York leading the pack. Thirty-two percent of federal sentences in the District of Connecticut fell below guideline ranges for reasons other than substantial assistance. Judges in the Eastern District of New York, which encompasses Long Island and three of the five New York City counties, granted similar departures in 31 percent of their cases. In the Eastern District of Washington, 41 percent of all federal sentences involved downward departures not involving defendants’ assistance to the prosecution, compared with 17 percent in 1994. In the Southern District of California, 49 percent of similar sentences were below the guideline range, up from 21 percent in 1994. The 1st Circuit had the highest rate of adherence to the guidelines, with 72 percent of all sentences handed down in 1999 falling within the recommended range, although the Western District of Kentucky, in the 6th Circuit, had the highest district-level rate at 91 percent. Tim McGrath, staff director for the sentencing commission, says that the increase in departures can be explained by federal immigration cases. Almost 30 percent of the sentences given in 1999 immigration cases involved a downward departure unrelated to assistance to prosecutors — a 10-point jump since 1994. McGrath explains that judges in districts overburdened with such cases grant departures in exchange for a defendant’s agreement not to challenge deportation. “If you subtract … the immigration offenses, the within-guideline-range percentage goes up to 89 or 90 percent,” McGrath says. “In some respects, the guidelines are working as expected.” Commission statistics listing the reasons that judges give for granting downward departures show that, with the exception of deportation, the primary reasons for departures have remained the same. These include mitigating role in the crime, plea agreements, diminished capacity, physical condition, family ties and rehabilitation, and various other reasons unique to individual cases. Conversely, deportation as a factor in departures increased from 1 percent to 20 percent between 1992 and 1999. On Capitol Hill on Oct. 13, Senator Strom Thurmond, R-S.C., accused federal judges of undercutting the system and the Clinton Justice Department of remaining passive, pointing to just 19 government appeals of some 8,304 non-substantial-assistance departures last year. “If the trend continues much longer, we will see more criminals being sentenced below the guidelines than within them,” Thurmond said during an Oct. 13 criminal justice oversight subcommittee hearing. Federal sentencing expert Nancy J. King, a law professor at Vanderbilt University in Nashville, Tenn., says that despite the numbers, judicial opposition to the guidelines is not widespread. “Some of the judges who have never sentenced under any other system are not as opposed to it as those who have,” she says. One judge who has worked under both systems is Murphy, who concedes some sympathy for judges who miss the unfettered discretion they had before the guidelines. “I can tell you there were many times when I was a trial judge that I might have granted a departure — where the defendant was young, had special family circumstances or came from a part of the community where living is hard — and some of these factors are forbidden for departure,” she says. But under the guidelines, she adds, judges retain sufficient latitude as long as they give their reasons for granting a lesser sentence. She says the agency will incorporate a study of departure trends in its 15th anniversary review, due in 2002.

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