Since my appeal was just recently dismissed without even being heard, many people have shown concern over how this could even happen. I have been hearing such concern since my case began, and especially since my sentencing which was almost twice as high as a ring leader of the fraud scheme.
US District Judge Mark Bennett and Prof. Mark Osler wrote about how there has been a tragic transformation of criminal law. The driving factor of mandatory minimum sentences and harsh guideline sentences is how a prosecutor decides to prosecute a defendant. The title of their work is named “The wrong people decide who goes to prison”. They urge reform to address the discretion that has been granted to prosecutors. (See this CNN Commentary below, which follows).
In my case, initially the prosecutors asserted a ridiculously long sentence that was enhanced by significant loss amounts that I allegedly caused large mortgage lenders for using their stated income loan products. Then, after I pled guilty with a promise of a hearing to determine a true loss amount, the prosecutors admit the loss amount overstates my role and the supported a lower sentence. Unfortunately Judge Alfred Covello abdicated his responsibility to sentence me fairly when he rubber stamped the prosecutors FIRST sentence recommendation even after the prosecutors noted at length why it was too high. Why were they allowed to even offer such a high plea to me when they didn’t for others more responsible for actual losses despite policy against it? Because they could.
The only way this system is going to be truly reformed for the good of all of society is if the process begins fairly if power is equalized.
Reg # 17986-014
FEDERAL CORRECTIONAL INSTITUTION
DANBURY, CT 06811
United States of America
From: http://www.cnn.com 12/3/13
Opinion: Who decides who goes to prison? By Mark Bennett and Mark Osler
Editor’s Note: Mark W. Bennett is a U.S. District Court judge in the Northern District of Iowa. Mark Osler is a professor of law at the University of St. Thomas in Minneapolis and previously served as a federal prosecutor in Detroit. Bennett was the sentencing judge and Mark Osler the lead counsel for the defendant in the 2009 case of Spears v. United States, in which the Supreme Court supported Bennett’s reasoning in holding that sentencing judges could “categorically reject” harsh sentencing guidelines for crack cocaine.
(CNN) – Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors.
After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.
This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion.
It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.
The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.
After nearly 30 years, we know how Congress’ experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities.
Let’s look at just one way that prosecutors exercise this discretion: the enhancement of narcotics sentences under 21 U.S.C. 851, or proceedings to establish prior convictions. These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may raise the maximum possible sentence. They are based on criminal history and can apply when a drug defendant has a prior qualifying drug conviction, no matter how old. They were enacted as part of the War on Drugs. They often make a huge difference in the sentence that results.
The 851 ruling applies, though, only if a prosecutor decides it should, and therein lies the rub. Federal judges are sometimes willing to vary from the drug sentencing guidelines because they are often too harsh, particularly for low-level drug offenders. Application of 851 enhancements by prosecutors robs judges of this discretion. Once the discretion shifted to prosecutors, the prison population skyrocketed.
And our analysis of the way these enhancements have been used reveals a deeply disturbing dirty little secret of federal sentencing: the stunningly arbitrary application of these enhancements by prosecutors within the Department of Justice.
The numbers tell the story. Our home states are fairly typical in their wild disparities: A federal defendant in Iowa is more than 1,056% likely to receive a 851 enhancement than one in Minnesota.