A recent news story allows me to vent about another item on my increasingly prolix and impossible-to-catalogue list of pet peeves: confusion about federal sentences.
People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU'D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect.
The problem is this number — the sum of the maximum sentence for all the crimes charged in a federal case — usually bears almost no relation to the sentence the defendant actually faces.
Responsibility is not a zero-sum game. The Department of Justice, and its constituent U.S. Attorney's Offices, bear responsibility for repeating statutory maximums in their press releases bragging of indictments. Journalists and bloggers bear responsibility for repeating those numbers uncritically, especially if they repeat the "THAT'S MORE THAN YOU'D GET FOR DOUBLE-MURDER" meme.
So: let's look at the disconnect between the trumpeted numbers and the realistic numbers. Let's do so in the context of whale sushi.
Recently Typhoon Restaurant Inc., chef Kiyoshiro Yamamoto, and chef Susumu Ueda were indicted for various federal crimes relating to importing and serving whale, which is apparently totes not cool. The indictment, available through PACER, is here. The LA Times reported in a fairly low-key way that Yamamoto faces 67 years, Huffington Post went for "combined 77 years" in the eye-catching headline, and BoingBoing went with "life in prison".
Those numbers bear no relation to reality.
Federal sentences are calculated using the United States Sentencing Guidelines. (The usually very user-friendly United States Sentencing Commission site is under construction at the time of this writing; usually I'd link you there.) The guidelines are a very complex set of rules used to calculate a federal sentence based upon the crime charged, the circumstances of the case, and the criminal record of the defendant. Calculating a very simple sentence is like completing a very simple tax return under, say, 1040-EZ; a complex sentence is like completing a tax return for a troubled entity engaged in questionable tax practices. Or, for you old-school geeks, like creating a Runequest character for a friend who is an argumentative rules-lawyer. From the enactment of the guidelines in the 1980s until United States v. Booker in 2005, the guidelines were binding upon federal judges — they had to follow the guidelines unless there were grounds for a "departure," meaning the rare circumstance not contemplated by the guidelines. Guidelines-application litigation was time-consuming, tedious, and generally despised by trial and appellate judges. In 2005, the Supreme Court decided to construe the guidelines as mere recommendations which federal judges must consider, thus avoiding the Constitutional dilemma of the sentencing judge making findings of fact driving the sentence without a jury's input. Now, federal judges calculate and consider guidelines sentences, but make their own determination, taking into account the factors required by federal statute. Appellate courts review trial judges' sentences for "reasonableness," in which adherence to the guidelines is one factor. Sentences within the guidelines are presumed reasonable. Most federal judges tend to issue sentences close to the guidelines; some impose sentences below, but it's rarer to see one impose a sentence above.
With few exceptions — usually relating to murder, or terrorism, or huge drug cases — guideline sentences are far less than statutory maximums.
Let's look at the whale sushi case as an example.
The indictment charges Yamamoto with conspiracy to commit a federal crime (18 USC section 371), false statements to the government (18 U.S.C. section 1001), smuggling (18 U.S.C. section 545), obstruction (18 U.S.C. section 1512(c)(2), and selling a marine mammal product (16 U.S.C. section 1372(a)(4)(B) and 1375(b)), plus "aiding and abetting" in violation of 18 U.S.C. section 2, which means "even if he didn't do it hisself, he done tole someone else to do it, or leant them his ride." Yes, each of those crimes has a statutory maximum, and yes, if you added them all up, you'd get lots of years.
But a guideline sentence is different.
The guidelines work by figuring out two numbers — one representing the seriousness of the crime, and the other representing the defendant's criminal history — and then cross-referencing them on a chart, yielding a recommended number of months in jail:
Figuring criminal history is relatively straightforward; let's assume our man Yamamoto has no prior record, leaving him in Category I, the left-most column. The real complexity comes in calculating "offense level," the number representing the severity of the offense. There are many factors: the seriousness of each charged crime, the amount of "loss" (whether the amount of money robbed from a bank, the amount defrauded from investors, or here the amount of whale meat imported), and factors related to the entire crime (whether the defendant was a low-level mope or a kingpin, and whether the victim was particularly vulnerable, whether the defendant pleaded guilty, etc.). The most complicated calculations arise when there are disputes over amount of loss, or when there are multiple crimes that must, under the arcane guideline rules, be calculated separately.
I could go into groin-kicking detail about the application of the guidelines to this case, but let me cut to the chase: I think the offenses charged probably "group" (meaning I think they would be considered as one lump), and I think they'd be sentenced under 2Q2.1, applicable to offenses involving fish and wildlife. Under that guideline we start with a base offense level of 6. We add 2 if the offense was for monetary gain, which it was, for a total of 8. We would add 2 more if the meat required quarantine; it didn't, so we don't. We add the greater of 4 (because whales are protected marine mammals) or the number corresponding to the market value of the whale meat under guideline 2B1.1. We don't know what the government will say is the value of the whale meat; this is a place where the government can try to drive up the sentence. However, we know that the government claimed in the complaint that the defendants paid about $17,000 for one shipment of whale meat. Let's pull a number out of our ass and call it $100,000. Under the 2B1.1 loss table, more than $70,000 but less than $120,000 yields 8 levels. That's more than 4, so we add 8, making our running total 16.
Next, we look at offense characteristics. Let go tough for the government here and assume they can show that the defendant supervised others in the crime, netting 2 more levels under 3B1.1. That gets him 2 more levels, for 18. Let's also assume that because the government charged obstruction of a proceeding, they can also nail him with a two-level enhancement under 3C1.1, totalling 20 points.
I could be off here. The government might claim the counts don't "group," so you'd have to add a few points to add them together under the rules for multiple counts. Or they may claim the value of the whale was higher. But I'm not going to be much off.
Assume this defendant pleads guilty. He gets 3 levels off for that. He's left with a final offense level of 17, Criminal History Category I, for a recommended sentencing range of 24-30 months. That's before his lawyers — with whom I have worked, who are very good at their job — start to fiddle with these numbers and argue for leniency.
Now, 24 months in federal prison — even the low-security camp to which whale-sushi-chefs would be sent — is nasty. But it has no relation to the 67 years, or life sentence, bandied about in the press or on the blogs. Plus, betcha he gets less — if he's convicted at all. I could get him less.
1. Maximum sentences have very little relation to actual sentences in federal law. When the government quotes the maximum sentence, they are trying to scare you. When the press quotes it, they are uninformed or lazy. Exercise skepticism. Resist emotional appeals to "how is this sentence reasonable when murderers get less?"
2. If you are a federal defendant, you need someone who knows the federal sentencing guidelines. If you hire a state practitioner, it doesn't matter how great a trial lawyer he or she is. If they don't know the guidelines inside and out, you're cooked.
3. Note that in the indictment they charge two of the guys with lying to investigators. I guarantee those lies, if they happened, didn't deter or slow down the investigation a milisecond, but they piled on more charges for the lies anyway. SHUT UP AND DON'T TALK TO THE GOVERNMENT. They are not your friend. They are looking to run up the charges against you. SHUT UP.
4. Note that the feds filed the complaint in 2010, dismissed, and indicted in 2013. That's (1) typical of Los Angeles' environmental and animal cases, which take years, and (2) probably a sign that there were unsuccessful attempts to negotiate a resolution. That's speculation, but based on experience. But federal investigations can go on for years and years.
Edited to add: Xeni Jardin links to this post as a critique of hers, which I appreciate.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016