THE LAW AND POLITICS OF SENTENCING: Are We Finally Shifting the Focus Out of the Streets and Into the Suites?

If the past week is any indication, significant legal and political change is afoot in the world of sentencing. Politicians finally are confronting and, to a degree, remedying a longstanding problem: Our criminal justice system's longtime obsession with the prosecution of street crime, and its corresponding neglect of "suite crime."

First, there's some indication that we are about to get tougher on "suite crime." The U.S. Department of Justice and Sentencing Commission each, respectively, issued policy changes and amended sentencing guidelines relating to white collar offenses. The new policies and guidelines ought to ensure that even small-time white collar offenders receive actual prison time. In the past, this type of offender often has instead served his or her time in a community correction center, a halfway house, or even - perhaps most scandalously - in the comfort of home.

At the same time, recent events related to the death penalty suggest that we are becoming inclined to treat street crime more fairly. As has been well-documented, a disproportionate number of death row inmates are poor, and many are members of minority groups. Just as white collar offenders have enjoyed excessive leniency, these inmates have often suffered excessive, or unfair punishment, as death row DNA exonerations have shown. Finally, states such as Illinois and Maryland are acting on this evidence.

Let's hope that these developments are part of a trend, for the schism between the justice the U.S. provides to the rich and poor, always dramatic, has been perhaps no more evident than in the realm of sentencing. It is an area ripe for reform.

Events in Illinois and Maryland Show a Growing Distrust of Death Row

As has been widely reported, Illinois' conservative Governor, George Ryan, last week commuted the sentences of every single of the 156 inmates on Illinois' death row to life. (At the same time, Ryan gave outright pardons to four inmates whose murder convictions had been based in part on their confessions, and whose confessions had been thrown into doubt by evidence that had been obtained by torture or other questionable means.)

Citing the "demon of error" in the "machinery of death," Governor Ryan condemned the state's death penalty system. He noted that since 1977, 12 inmates had been sentenced to death while 13 had been exonerated by forensic evidence - a statistic that still shocks. Moreover, he noted that the vast majority of these inmates were minorities without the means to mount substantial defenses, increasing the risk of false conviction. He concluded that Illinois' system "has proved itself to be wildly inaccurate, unjust, unable to separate the innocent from the guilty and, at times, racist."

Meanwhile - in a less well-publicized but, in its own way, also highly significant development - Professors Raymond Paternoster and Robert Brame published the results of their long-awaited study on the administration of the death penalty in the state of Maryland. The study gathered data from nearly 6000 homicide cases in the state over the past two decades.

But the study should make even Governor Ehrich think twice, for its conclusions are very troubling. And other state Governors shouldn't rest easy either: Many other states have undertaken similar studies that indicate similar systemic problems so even if less press ink has been spilled on it recently, the fact remains that they have a problem too.

The Disturbing Results of the Just-Release Maryland Death Penalty Study

The Maryland study found that "[o]ffenders who kill white victims, especially if the offender is black, are significantly and substantially more likely to be charged with a capital crime." Indeed, the chances are "twice as high as when a black slays another black."

In sum, the study makes clear that, in Maryland, the race of the offender and of the victim matter significantly when it comes to deciding whether to charge a capital offense. Moreover, the study also found that geography - another factor that ought to be irrelevant to sentencing - actually matters a great deal, too.

It demonstrated, for example, that a black offender who kills a white victim is 26 times more likely to receive a death sentence in Baltimore County than in neighboring Baltimore City. Moreover, the same type of offender is 14 times more likely to be sentenced to death in predominantly white Montgomery County, which lies just 30 miles to the south. So much for equal justice.

What is more, the study concluded that the extreme disparities were not the result of judges, juries, or how the laws were written. Rather, they were the result of how prosecutors exercised their discretion, when deciding whom to charge with death-eligible offenses and how vigorously to prosecute them.

Significantly different prosecutorial policies among various Maryland jurisdictions lead to significantly different death penalty statistics for each. As a result, the state's criminal justice system as a whole is far from meeting the ideal of "parity," which is that similarly situated offenders ought to be treated similarly.

Indeed, as reported in the Washington Post, "[t]he vast majority of black murder victims in the state die in Baltimore City and in Prince George's County, two jurisdictions where prosecutors rarely seek the death penalty because local juries are reluctant to impose it. But in Baltimore County, which has a much higher percentage of white murder victims, the policy is to seek the death penalty whenever legally possible."

The injustice seems clear: It should not matter whether an offender commits a murder in Baltimore City or Baltimore County; the outcome should be the same. But the remedy is not: These prosecutors' offices operate independently, with each county electing its own State's Attorney, so - unless Maryland government is changed so that a new elected or appointed official oversees all the different State's Attorneys - it seems the disparities will remain.

One item to consider during such a moratorium would be the possibility of imposing guidelines. Not sentencing guidelines--which Maryland, like many other states and the federal government, already has--but prosecutorial guidelines.

The purpose of sentencing guidelines, after all, is to reduce unwarranted sentencing disparity by centralizing the exercise of sentencing discretion into one body, usually a commission. Consequently, if the goal of eliminating unwarranted disparity is being trumped by the vastly disparate exercise of prosecutorial discretion, it seems that the imposition of prosecutorial guidelines in some form may be appropriate.

Of course, prosecutors would balk at such a suggestion as guidelines would deprive them of much of their discretion. Judges did also when sentencing guidelines first were imposed. Yet, as sentencing discretion has become more predictable and uniform, unwarranted disparity has been reduced. But as long as prosecutorial discretion remains unchecked, unwarranted sentencing disparity likely will remain.

Meanwhile, White Collar Crimes Remain Underpunished, Despite Their Harm

Compared to murderers, white collar offenders may seem like small potatoes. But it's not true. White collar offenses can also kill, though there may not be a particular murderer to blame.

For instance, in a recent three-part series in the New York Times, the newspaper documented the sordid history of McWane, Inc., one of the world's largest manufacturers of sewer and water pipes. At McWane, nine workers have died on the job since 1995 - tragedies that allegedly are attributable to the company's willful (and thus potentially criminal) violations of safety standards.

Perhaps even more shocking, the Times reported that over the past 30 years, there have been an estimated 200,000 preventable worker deaths in the U.S.. But in the same period of time, the Occupational Safety and Health Administration - the agency tasked by Congress to enforce workplace safety - has referred a paltry 151 of those case to the Department of Justice for prosecution. And of the 200,000 cases, only eight resulted in prison sentences, the longest being six months.

Moreover, even when white collar crime does not result in death, it still results in serious harm. After the Enron, WorldCom, Arthur Andersen, and now McWane, Inc. cases, can we still pretend that white collar crimes do not inflict real damage?

Take fraud, which can bilk its victim out of huge sums, and tax evasion, which can do the same to the government itself. Both crimes remain woefully under-prosecuted, and far too leniently sentenced.

As the Bureau of Prisons' website reveals, since the mid-1990s, over half of our federal prison population has been comprised of drug offenders. Currently, 55% of the prison population is comprised of drug offenders. Meanwhile, only about 5% are white collar offenders.

Why? Because of the politics of punishment. It is much easier to prosecute a drug offender, and much easier to get a longer sentence (even death), than to prosecute a white collar case and receive, in the end, an appropriate sentence for the offender. The new policies and sentencing guidelines that were just announced may do something to remedy that. But one reason for the difference will persist: White-collar defendants can usually afford high-priced, talented lawyers, and drug defendants, except for the richest kingpins, often cannot. And this is a systemic problem.

The Need to Punish "Suite Crime" More Harshly, and Street Crime More Fairly

Among the most fundamental tenets of sentencing are proportionality and parity. Proportionality is the principle that mandates that the severity of a sentence should be proportional to the seriousness of the offense. Parity is the principle that similarly situated offenders should be treated similarly.

As the system now stands, white collar crimes are grossly underpunished, violating proportionality norms. And street crime is punished arbitrarily and unfairly, violating parity norms.

Moreover, there are even more dramatic injustices, relating not only to parity and proportionality, but also to guilt and innocence. Some white collar perpetrators are not punished at all (it's too hard, with the flurry of motion practice and possible defenses their lawyers pursue to muddy the waters). Meanwhile, some street crime perpetrators are punished, and even executed unfairly (after all, it's easy when they have only an overworked, court-appointed lawyer and no other resources).

Our current criminal justice system long has been out of balance with respect to all of these principles. Let us hope the past week heralds a new direction that it will soon take.