During his 90-minute sentencing hearing Downtown in federal court on Feb. 25, convicted bank robber Alexis McIntyre thought he might catch a break.
His attorney, Michael Healey, presented 25 letters of support from friends, family and members of McIntyre's church. McIntyre's bishop flew in from New York that morning to speak on his behalf.
Judge Terrence McVerry said he was impressed, not only by this show of support but by the way in which McIntyre had spent the past 14 months locked in the Allegheny County Jail: taking self-improvement classes, getting his GED high school diploma and studying to become a paralegal.
But McIntyre also had what he probably thought was an ace in the hole. Little more than a month prior to his sentencing, the United States Supreme Court had ruled that long-established federal sentencing guidelines were no longer mandatory, merely advisory. The guidelines, in force since 1984, had caused judges to mete out sentences based on a formula, rather than their own judgments. The Supreme Court now said such a policy was at least partly invalid. For one, the guidelines hadn't allowed attorneys to argue extenuating circumstances before juries. With the guidelines no longer mandatory, convicted criminals wouldn't automatically face additional months or years based on certain of those extenuating circumstances.
The judge may have been impressed, but he gave McIntyre 63 months -- almost smack in the middle of the no-longer-mandatory guidelines for McIntyre's case.
The Supreme Court decision of Jan. 12, known as the Booker case, was expected to let federal judges have more discretion, perhaps even be more lenient on some defendants. But in sentence after sentence in Pittsburgh and in federal courts throughout the country, it has had little effect -- or even the opposite effect.
Elsewhere in the Western District of Pennsylvania federal courthouse Downtown on Feb. 25, Judge Donetta Ambrose handed a sentence of 46 months to Leonard Worthy, convicted on drug charges. According the judge, Worthy had no serious criminal history and had a minimal role in a narcotics operation. Still, 46 months fit into the low end of the federal guidelines.
Ambrose then sent Patrick Lewis to prison for 63 months. Lewis had pleaded guilty to conspiracy to distribute cocaine and heroin. His attorney asked for leniency, since Lewis is a single father and had a small role in the drug operation. Ambrose looked torn as she decided the union welder's fate, but gave him a sentence within the guidelines, albeit at the very bottom.
Prosecutors at the sentencing of Washington County Ku Klux Klan leader David Wayne Hull, convicted of possessing illegal weapons, asked Judge Gary Lancaster for a stiffer sentence than the guidelines allowed. But they didn't get anywhere either. Hull's screaming disdain for the whole procedure didn't even seem to hurt. The guidelines called for 130-160 months in prison. Hull got 144.
Federal sentencing guidelines were put in place in 1984 with Congress' passage of the Sentencing Reform Act to provide uniformity in sentencing. Under the guidelines, a sentence could be enhanced by any number of factors: a defendant's criminal history, the amount of narcotics involved in the crime or if the defendant were deemed a "ring leader" in a drug operation or other racket. Distributing crack also merited a steeper sentence than selling plain cocaine, for instance.
In the end, all of these "enhancements" can turn a once possibly reasonable sentence into one that requires a calculator and decades of calendars. And such rules have long favored the government rather than defense attorneys.
But attorneys on both sides of the aisle say the Booker decision has left judges puzzled about how to deal with such "advice."
"There really is total mayhem in the district," says defense lawyer Michael Healey, who practices Downtown with Healey, Davidson and Hornack as well as the National Lawyers Guild. "The biggest problem with Booker is no one really knows what advisory means. Does it mean ... that judges can and should use discretion, or does it mean judges should stay within those guidelines unless there's some extraordinary reason for [leniency]?"
In the two months since the court's ruling, cases pending appeal based on sentencing factors (estimated to be in the hundreds by Healey as well as the federal public defender's office) have been remanded to the district courts to take Booker into account. What remains to be seen, however, is whether Booker will really make a difference if judges cling so tightly to the guidelines.
Studies comparing pre- and post-Booker federal courtrooms are already underway by the U.S. Sentencing Commission and by Steve Saltzburg, a member of the American Bar Association House of Delegates. Saltzburg chairs an ABA commission looking at Booker and federal sentencing standards in general.
U.S. Attorneys in all 94 federal districts are tracking each sentence handed down by a federal judge, but local statistics are not yet out. Nor was Western District U.S. Attorney Mary Beth Buchanan available to speak about the subject. But data from local sentencing decisions is part of the sentencing commission's national study.
So far, at least, getting rid of the guidelines has had very little effect on the majority of cases. Of 733 federal sentences decided on or after Jan. 12 and examined by the sentencing commission, 65.7 percent were within guideline ranges. For 2002, the last complete year in which tracked sentences are available, 65 percent met the guidelines.
But the number of sentences higher or lower than the guidelines allow is surprising. Only 12 percent of sentences were below the guidelines since Booker, compared to 16.8 percent in 2002. (These don't include lowered sentences prompted by a prosecution recommendation of leniency.) The more shocking statistic, however, is the number of post-Booker sentences that are greater than the guidelines called for. Since the ruling, judges have given such sentences in 2.7 percent of the cases -- almost three times the number of higher sentences given before Booker.
"There was a fear after Booker that judges were going to go wild and be more lenient," Saltzburg says. "That's clearly not manifesting itself."
The ABA is recommending Congress make no changes to current sentencing laws for at least a year to see if using "advisory" guidelines proves tenable.
Lisa Freeland, who heads the federal public defender's office, says her staff is reviewing cases slated for sentencing and trying to determine what can be done for their clients under the new non-guideline guidelines. Her hope is that Booker "humanizes sentencing decisions in a system where the defendant is already at a disadvantage."
But right now, how sentencing practices will change is the great unknown.
"In most cases you're talking about judges who have been using the previous system many years and now have to re-evaluate the way they've been doing things," she says. "And if change is going to come under the current system, I think it's going to come slowly."
Says defense attorney Michael Healey: "At some point, I think you're going to have judges all over the map in their sentences. For my part, all I can do is continue as I've done and present traditional sentencing factors and argue that the guidelines are advisory and are just one of many things to be considered. But at the end of the day, I think this matter is once again destined to go back to the Supreme Court."