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Judges seek leeway in prison sentences

The high court will look at strict rules that are a holdover from the war on drugs and that legal activists say are unfair.

September 29, 2007|David G. Savage | Times Staff Writer

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 U.S. Supreme Court, which in May turned away her claim that the sentence was unconstitutional.

Increasingly, judges and legal activists -- conservative and liberal -- point to cases like Hungerford's and say the federal sentencing system is badly 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 next month 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, an appointee of President Bush and former law clerk to Antonin Scalia before Scalia joined the Supreme Court. "When I have to sentence a midlevel drug dealer to more time than a murderer, something is wrong."

"This is not about being soft on crime," Cassell said in an interview. "I believe in tough sentences for severe crimes."

Three years ago, Cassell was forced to sentence 24-year-old Weldon Angelos 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 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 those 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. The surge of inmates has contributed to prison overcrowding in many states, including California, home to about 175,000 state and 15,000 federal prisoners.

Critics of the sentencing rules point to several problems with them, some of which are unintended.

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 and 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, apparently to no avail, that her diagnosis of "borderline personality disorder" should have been taken into account.

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," said Justice spokesman Dean Boyd. "Multiple armed robberies present substantial risks of death or serious injury, and our sentencing laws reflect that . . . in the hope of protecting the public."

However, Bush's nominee to head the Justice Department as the next attorney general, Michael B. Mukasey, has spoken out against the sentencing laws. While on the federal bench, he was among a number of judges who thought the limits that the guidelines placed on courts violated the constitutional principle of separation of powers.

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