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Supreme Court to examine strict sentencing rules
BY DAVID G. SAVAGE Los Angeles Times

   WASHINGTON — Marion Hungerford, a 52-year-old woman diagnosed with a mental illness, was convicted two years ago as an accomplice after her live-in boyfriend pleaded guilty to a series of armed robberies in Billings, Mont.
   Her sentence: 159 years in federal prison.
   The judge said federal sentencing rules gave him no choice. The U.S. Court of Appeals in San Francisco agreed, as did the Supreme Court, which in May turned away her claim that the sentence was unconstitutional.
   Increasingly, judges and legal activists — both conservative and liberal — point to cases like Hungerford’s and say the federal sentencing system is out of whack. They are hoping that Congress or the Supreme Court will move to give judges leeway to impose shorter — and, they say, fairer — prison terms. The high court will hear two cases in October that challenge mandatory minimum sentences.
   “The worst aspect is the utter irrationality of the system,” said U.S. District Judge Paul G. Cassell from Utah. He’s a Bush appointee and former law clerk to Supreme Court Justice Antonin Scalia when Scalia was a judge on the Court of Appeals for the District of Columbia. “When I have to sentence a midlevel drug dealer to more time than a murderer, something is wrong.”
’80S HOLDOVER
   Three years ago, Cassell was forced to sentence Weldon Angelos, 24, to 59 years in prison for three marijuana sales of $350 each. On each occasion, Angelos had a gun in his car, which tacked on 55 years to his prison term.
   “I believe that to sentence Mr. Angelos to prison for the rest of his life was unjust, cruel and even irrational,” Cassell told a House committee in June. In contrast, he said, an airline hijacker or a terrorist who sets off a bomb in a public place would receive 20 to 25 years in prison.
   The current system is a holdover of the mid-1980s and the so-called “war on drugs.”
   Congress set fixed prison terms for crimes involving guns and drugs and adopted sentencing guidelines that set prison terms for all other federal crimes, including white-collar offenses. It also eliminated parole, meaning people sent to federal prison cannot be released until they have served most of their terms.
   The new rules have contributed to the nation’s swelling prison population. Last year, 181,622 inmates were in federal prison, up from 24,363 in 1980, according to the Bureau of Justice Statistics.
   Many states followed the federal model by setting long prison terms and abolishing parole. Nationwide, 2.3 million people were locked up last year in federal, state and local facilities, up from 501,886 in 1980. Nearly half a million people, or 493,800, are in prison or jail for drug crimes, up from 41,100 in 1980, the liberal Sentencing Project reported last week.
   Critics of the sentencing rules point to several problems with them, some of which are unintended.
ILLOGICAL PUNISHMENT
   The fixed “mandatory minimum” sentences can generate some severe prison terms. To punish gun-toting criminals, Congress set a five-year term for using a gun to commit a crime and 25 years for a repeat offense.
   Hungerford did not touch a gun nor rob any of the convenience stores, bars or casinos her boyfriend hit, and no one was hurt in the crime spree. Nonetheless, she was convicted as a co-conspirator and sentenced to nearly five years for the robberies, five years for the first use of a gun and 25 years each for six additional gun crimes.
   Hungerford’s attorneys argued that her diagnosis of borderline personality disorder should have been taken into account, apparently to no avail.
   Her boyfriend pleaded guilty and was sentenced to 32 years.
   “This was absurd. She wasn’t there when the crimes were committed, and she gets more than a life sentence,” said Palmer Hooverstal, her defense attorney from Helena, Mont.
   The Justice Department said the long sentence was appropriate because Hungerford was an active participant in a dangerous crime spree and did not cooperate with authorities.
   If she had pleaded guilty and cooperated, “The court would have had discretion to impose a lesser sentence,” Justice spokesman Dean Boyd said. “Multiple armed robberies present substantial risks of death or serious injury, and our sentencing laws reflect that ... in the hope of protecting the public.”
FIRE FROM BOTH SIDES
   President Bush’s nominee to head the Justice Department as the next attorney general has spoken out against the sentencing laws. While on the federal bench, Michael B. Mukasey was among several judges who thought the limits that the guidelines placed on courts violated the principle of separation of powers under the Constitution.
   And the conservative Washington Legal Foundation has condemned “the unduly harsh sentences” set by the federal rules. Its lawyers say too many business owners and white-collar defendants are given long prison terms for violating regulatory laws.
   “We have clients who are serving eight years for importing seafood packed in the wrong containers,” said Paul D. Kamenar, counsel for the group.
   Moreover, defendants can be given extra prison time for charges on which they were acquitted. This “goes against virtually everything we know and respect about the American criminal justice system,” said Harlan Protass, a New York lawyer .
   He cited the case of Mark Hurn, a convicted drug dealer from Madison, Wis . Police found drugs, including crack cocaine, in his house. Hurn testified that the drugs were not his but were owned by other people who had lived there. A jury convicted him of having some powder cocaine, which called for at least two years in prison, and acquitted him of the crack charges. But the judge disagreed and sentenced him to 17 1 /2 years, which included the crack charges. In August, the U.S. appeals court in Chicago upheld his sentence.
   This fall, the Supreme Court and the U.S. Sentencing Commission might move to lower the prison terms for drug crimes.
   The law that governs sentencing is in fl ux. Although the high court cannot change the “mandatory minimum” sentences that are set by Congress, it ruled recently that the federal sentencing guidelines are not legal mandates. Now, the court must decide when judges may ignore the range of prison terms set in the guidelines.