Federal judges complain of rigid sentencing guidelines Some say prosecutors exploit rules

September 28, 1992|By Norris P. West | Norris P. West,Staff Writer

No one claims that David Moe Robinson is a good guy. Certainly not federal prosecutors. Not the judge. Not even his lawyer.

Robinson is a convicted drug dealer who once fired a gunshot through the window of a former associate's home to "send a message" about what happens to people who don't pay cocaine debts on time.

Now, he is in the cross-fire of an escalating war of words over federal sentencing guidelines, which in effect transferred the authority of federal judges to prosecutors five years ago to eliminate sentencing disparities. Judges here and throughout the country are complaining more and more about the rigid rules that narrows their discretion to impose sentences they believe are appropriate.

Robinson is a 21-year-old man who stood before Judge J. Frederick Motz earlier this month in U.S. District Court in Baltimore. He had been convicted of cocaine conspiracy and weapons charges. He would face a long prison sentence. The only question was how long.

Judge Motz glanced at the guidelines and was about to impose a 35-year, no-parole term. Robinson would be locked up until the year 2027, at age 56.

"Excuse me, your honor," interrupted the prosecutor, Assistant U.S. Attorney Andrea L. Smith, who said Robinson was required to serve an additional 20-year mandatory term because of the weapons conviction.

With a sentence that would keep him in prison until the year 2047 -- at age 76 -- it was crying time for Robinson.

"I have a 3-year-old son, and I am 21 years old," he sobbed, teary-eyed. "Why would she want to give me life imprisonment? I am not a murderer. Who have I killed?"

His lawyer, Antonio Gioia, said Robinson had been prepared to accept a plea agreement that would have yielded him a 26-year term. But to secure the relatively lenient treatment, he would have had to incriminate his mother in his drug conspiracy, Mr. Gioia said.

That's when Judge Motz became visibly angry. He was concerned that federal prosecutors were using the threat of long no-parole guideline sentences and mandatory minimum terms to force defendants to plead guilty to lesser charges. Robinson and his mother both went to trial and were convicted by a jury.

"There comes a point when the conscience [bothers] somebody sitting up here who foresaw the problems to begin with, who has to go home at night and agonize over what's going on," Judge Motz said before storming off the bench and declaring a recess.

When he returned moments later, he said he would postpone the sentencing until he receives more information about plea-bargaining in the case. No date was set.

His comments echoed those heard from other federal judges, who are becoming increasingly outspoken in their opposition to the guidelines, written by the U.S. Sentencing Commission.

Judges say the guidelines fail to achieve fairness, often are too confusing and undermine the fairness of criminal trials by taking power from the judge, the impartial player, and handing it to the prosecutors, who are advocates for the government.

The guidelines were imposed because of complaints that judicial decisions were causing wide disparities in sentences for the same crimes because some judges were too lenient, others too harsh. But federal judges argue in legal journals that the guidelines have created only an illusion of fairness because discretion has merely shifted to prosecutors.

Other concerns are that the guidelines have not deterred crime and have created another layer of costly government bureaucracy.

The guidelines, which Congress enacted in 1987, divide criminal offenses into 43 levels. Federal judges are required to use a chart and match the criminal's offense level with his criminal history to arrive at a narrow sentencing range.

Judges complain privately that prosecutors use the guidelines to get the sentences they want and sometimes to arrange more prison time for small players than for ringleaders who agree to cooperate with them.

Prosecutors can do this, they say, by bringing the charges they want against a defendant. Those who cooperate and help bring down their associates can get deals that allow them to plead guilty to charges carrying light penalties. Those who don't cooperate, or come forward too late, often face the stiffest charges.

U.S. Attorney Richard D. Bennett said there was nothing wrong with seeking tough penalties for stubborn defendants. "When an individual refuses to cooperate and forces us to prove the case, he puts himself in a position to be prosecuted," he said.

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