Thursday, February 15, 2007

Border Patrol shooting case points to unfairness of federal sentencing guidelines

For those interested in the case of the two Border Patrol Agents who famously received stiff sentences for shooting an unarmed, fleeing drug dealer in the back then lying about it, the Texas Western District US Attorney has put quite a bit of information online about the case, including the trial transcripts. Doc Berman has had the best commentary on the subject, and I refer you to his most recent post on the topic and the links to others at the end.

For my part, this case fascinates me, but the federal issues involved are beyond my ability to knowledgably debate, which is why I've mostly left it to Berman and others to cover the subject even though it's a Texas case. On the one hand, what the officers did deserved prosecution. On the other hand, I look at their sentences of more than ten years for actions taken in the heat of the moment, then compare them with the seven year probated sentence Tom Coleman received for perjury after the Tulia drug stings, and I understand why some people think the sentence is too harsh.

Here's the rub, as I understand it: The federal sentencing guidelines established by Congress mandated these harsh sentences. It's true prosecutorial discretion to push for the max after a plea bargain was rejected also contributed, but that's done in every case. So for Congress to revisit the sentences would require revisiting what I and many others think are fundamentally unjust federal guidelines and mandatory minimums. In other words, Congress would conceivably have to alter rules that unfairly hike sentences for MANY defendants, not just these two.

That's why I'm glad Doc Berman and many on the right are focusing on this. It's not that I think Border Patrol agents deserve more (or less) justice than anyone else accused of a crime. But the context allows even the most arch conservative who might not otherwise be able to hear such arguments to listen, understand, and even agree with them. Berman's dogged articulation of the sentencing implications raised by these cases, to me, opens up an interesting opportunity to discuss these arcane federal sentencing rules with a conservative audience that's anxious for good arguments, and I'm glad he's taking it.


Dan Kowalski said...

Note that a fairly conservative ex-prosecutor agrees with Sutton:
"The Border-Patrol Two Deserve Jail,"
By Andrew C. McCarthy, Jan. 29, 2007, National Review Online,

Gritsforbreakfast said...

I'm sure many prosecutors agree. In fact, I agree that the sentences were fair IF you think that the guidelines are fair. In other words, to my knowledge they were appropriately sentenced for what they were charged with under the guidelines.

But for those, and they are legion on the right, who think the sentences are UNfair, I think it's useful to educate them how, by extension, the guidelines are sometimes unfair, and also prosecutorial charging discretion can be abused to force a plea.

Pity has never been a force for change, but anger, anger in politics can get things done. The right is already angry over the Border Patrol Agents' sentencing. I think Berman is wise to articulate all the specific problems with federal sentencing guidelines one might be angry about. best,

Anonymous said...

I think since the 2005 SCOTUS Booker case the guidelines are 'advisory' not 'mandatory'.