U.S. v. Green
| Decision Date | 18 June 2004 |
| Docket Number | No. CR.A. 99-10066-WGY.<SMALL><SUP>2</SUP></SMALL>,No. CR. A. 02-10054-WGY.,No. CR.A. 01-10469-WGY.,CR. A. 02-10054-WGY.,CR.A. 01-10469-WGY.,CR.A. 99-10066-WGY.<SMALL><SUP>2</SUP></SMALL> |
| Citation | 346 F.Supp.2d 259 |
| Parties | UNITED STATES of America, v. Richard GREEN, Defendant. United States of America, v. William Olivero, Jason Pacheco, Defendants. United States of America, v. Edward K. Mills, Defendant. United States of America, v. Jane Doe,<SMALL><SUP>1</SUP></SMALL> Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Frank M. Gaziano, John A. Wortmann, Jr., United States Attorney's Office, Boston, MA, for USA, Plaintiff.
Martin K. Leppo, Leppo & Leppo, Randolph, MA, John M. Moscardelli, Peters & Moscardelli, Boston, MA, for Richard Green, Defendant.
SENTENCING MEMORANDA
Power tends to corrupt and absolute power corrupts absolutely.
If you put all the powers to prosecute, try, and execute a sentence in one person's hands, that is the absolute antithesis of the checks and balances in the system of government that we have.
Here's a not-so-hypothetical conversation between an eager and enthusiastic district judge and an experienced and reflective circuit judge.
District Judge: What would you think of a system that afforded those accused of crimes scrupulously fair trials over which wholly independent judges preside, but which turns those convicted over to the prosecutors for such punishment as they may determine?
Circuit Judge: Utterly unfair, of course. That would be even more "sinister" than the nightmare hypothetical regime that Justice Scalia described in Monge v. California.5
District Judge: Well, isn't this the system we have today under the so-called "guidelines"?
Circuit Judge: Not at all. As we've been at pains to point out to you and your colleagues, the Sentencing Guidelines — while intricate — control federal sentencing and must be obeyed.
District Judge: I accept that. I have to. But what about the government?
Circuit Judge: Naturally they have to obey the guidelines.
District Judge: [Persisting] And if they don't?
Circuit Judge: No, no, that way lies the Serbonian Bog. If the government can manipulate the guidelines to suit themselves, a defendant's constitutional guarantees wouldn't be worth much.
That's hypothetical. These sentencing memoranda deal with five criminals. Three insisted on their constitutionally guaranteed trial by jury. The two others pled guilty and cooperated. The most evil and violent is a gang leader who had much information to give. The least, a woman, had little to give but went on courageously to finger a major drug lord. This is reality.
Richard Green is a retail drug dealer preying on the inhabitants of one of Boston's public housing projects. On two occasions he sold small quantities of crack cocaine (0.6 grams and 2.4 grams respectively) to an undercover informant. The government seeks to imprison him for 24 years.
William Olivero is a New York worker for a massive drug conspiracy whose kingpin (and major drug activity) are located in Massachusetts. Though not himself a dealer, Olivero has, on occasion, delivered kilogram quantities of cocaine and associated drug money for the kingpin. Olivero possesses a handgun. The kingpin has been sentenced to life imprisonment for his offenses. The government seeks to imprison Olivero for twenty-four to thirty years.
Jason Pacheco is a marijuana dealer who knew the kingpin, who on occasion purchased kilogram quantities of cocaine from the kingpin for his own account, and who once accommodated the kingpin by allowing his garage to be used for the brief storage and transshipment of a multi-kilogram quantity of cocaine. The government seeks to imprison him for twelve to fifteen years.
Edward K. Mills is a multiple murderer who led a vicious street gang. Eventually apprehended, he recognized the jig was up and cooperated with authorities. A gang leader himself, he had much information to give and his disclosures have led to the conviction of another murderer and the freeing of an individual wrongfully convicted of murder. The government seeks to imprison him for ten years.
"Jane Doe," a pseudonym, is a young, single mother. A drug addict, she dealt cocaine to support her habit. Eventually apprehended, she too cooperated and testified in open court so that the government might secure the conviction of an important drug lord from her homeland. In light of her cooperation, the government recommends a short sentence. As an alien, however, the government proposes to deport her back to her homeland where, the government admits, she will almost certainly be killed, perhaps after torture.
To achieve its ends, the government routinely imposes a stiff penalty upon defendants who exercise their constitutional right to trial by jury. In the first of the instant cases, the government's attempts to burden a citizen's right to a jury of his peers exceeds all constitutional bounds. The second case involves repeated instances of illegal fact bargaining. The third involves enforcement of a bargain with a cold-blooded killer that the Court characterized as evincing "a moral code more suited to the alleys of Baghdad than the streets of Boston," and the fourth reveals such callous indifference to innocent human life as would gag any fair minded observer. And this Court — stripped of any meaningful role in the sentencing of offenders who come before it — can do little more than explain what's going on. That, at least, I will do.
I. Federal Sentencing Policy — The Statutory Framework
This is the essential key to an understanding of federal sentencing policy today — the Department is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen.6 Figure 1 says it all.7
Moreover, "[i]f incarceration rates remain unchanged, 6.6% of U.S. residents born in 2001 will go to prison at some time during their lifetime,"8 a disproportionate number of these inmates being African American or Hispanic American.9 Simply to process the enormous number of convicts or soon-to-be convicts, the Department depends on plea bargaining as its life's blood. Its budget planning reflects the number of indictments on average each additional assistant United States Attorney will produce, and its resources are deployed accordingly. Today, the Department's entire efforts at law enforcement depend on plea bargaining as never before.
Plea bargaining is nothing new, of course. As Professor George Fisher has trenchantly observed:
Something more than 150 years ago, plea bargaining ... claimed but a tiny beachhead. Supported only by the desire of prosecutors to manage their crushing workloads and to gain an occasional effortless conviction, plea bargaining extended no further than the sentencing power of prosecutors.
. . .
Then, in the last quarter of the nineteenth century, judges found themselves confronted by an onslaught of new, and newly complex, civil suits brought on by the ravages of industrial machinery. They saw no choice but to make terms with the new order in the criminal courts. They embraced plea bargaining and turned their considerable sentencing power to its purpose. Sustained now by the two most powerful courtroom patrons [i.e., judges and prosecutors], plea bargaining swiftly became the dominant force in criminal procedure. It pushed aside the indeterminate sentence, and it supported those institutions, such as probation and the public defender, that aided its cause.10
As a result, by the mid-1980s roughly ninety percent of convictions in federal criminal cases were reached through plea bargains.11
The sentencing system our society has adopted with respect to federal offenders is embodied in the United States Sentencing Guidelines ("Guidelines"). Adopted by large bipartisan majorities in both Houses of Congress,12 and later held constitutional by the Supreme Court of the United States,13 the Guidelines were intended to cabin in unwarranted judicial discretion in sentencing while retaining sufficient flexibility to ensure individualized, just sentences in every case.14 At the time of the Guidelines' passage, it was recognized that there would be a massive power shift from the judiciary to the executive as prosecutorial judgments became by far the major determinant of a defendant's sentence.15 Still, it was believed that a robust and independent judiciary could hold any excesses in check.16
This latter expectation has proved utterly in vain. Against the centrally organized efforts of the Department to manipulate sentences and sentencing policy to achieve the perceived goals of law enforcement, the efforts of individual judges to control the whirlwind have been but a weak reed — unnoticed, derided, and largely rejected. As a result, the Sixth Amendment guarantee of trial by jury has been eroded as never before in the history of our nation, while the institutional judiciary complacently slips into forms of expression and modes of thought that unconsciously reinforce the Department agenda in a powerfully Orwellian way.
In any indeterminate sentencing scheme, a judge must determine where, within the statutorily permissible range, to sentence an offender. When I first came to the state bench in Massachusetts, now a quarter century ago, there were a number of offenses (armed...
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