Who wants to defend Roger Stone? The former political consultant and lobbyist is an old-school Republican operative with a tattoo of drug-war architect Richard Nixon on his back. He refers to himself as a “dirty trickster” and can’t even stay out of trouble while on supervised release from federal court. He was convicted last year of felonies for lying to the House Intelligence Committee regarding the Trump-Russia investigation.
Vast numbers of people in the criminal justice system, overwhelmingly from more marginalized populations, are more deserving of our advocacy. Yet Stone’s high-profile case serves as an entry-point to discuss the near-infinite sway of the US Sentencing Guidelines, from which all of us deserve protection.
On February 10, federal prosecutors recommended that Stone serve a within-guidelines sentence of seven-to-nine years in prison for his serious but nonviolent offense. Under the US Sentencing Guidelines he was hit with many aggravating factors that bumped up his sentencing range on the “grid,” such as the determination that his offense was significant in “scope, planning, or preparation.”
Federal prosecutors usually recommend Guidelines sentences in a mechanical fashion, without regard to whether the application of aggravating factors is just given the circumstances of the case. And federal judges are usually quick to comply, because issuing a Guidelines sentence is the easiest way to not get reversed on appeal—essentially being slapped down by more powerful judges for having bad judgment. Reversals of federal judges who show relative leniency are typical.
Then on February 11, President Trump tweeted, calling the recommended sentence “unfair” and slamming federal prosecutors.
And hey presto, the Department of Justice retracted its original recommendation that day, filing a new recommendation for a lesser sentence. Specifically, the DOJ wrote that the original seven-to-nine recommendation was inappropriate, due to a person Stone allegedly threatened saying that Stone did not deliver a “true threat,” Stone’s age of 67, his lack of criminal history, the need to avoid sentencing disparities, and other factors.
The reaction of the federal line prosecutors assigned to Stone’s case illustrated how unaccustomed they are to having their recommendations challenged. Four of them left the case, and at least one seems to have left his job completely. [Update, February 20: Stone was eventually sentenced to 40 months in prison.]
Trump’s intervention—amid justified alarm about his many overreaches and much else—extended to seemingly calling for a retrial on February 18. It is wildly inappropriate and complicates everything. Yet it has still been curious to see some of the reactions from Democrats in Congress to the prospect of Stone facing a lower number of years in prison for his crimes.
Senate Minority Leader Chuck Schumer (D-NY), for example, appealed to the “grand tradition in this wonderful Justice Department.” to ensure that “Roger Stone should get the full amount of time the prosecutors recommended.” Schumer has otherwise called for sentencing reform legislation, which federal line prosecutors adamantly oppose through their professional organization, the National Association of Assistant US Attorneys.
The US Sentencing Guidelines are almost everything on the federal level.
The federal prosecutors, it should be emphasized, did not produce their original sentencing recommendation for Stone out of some principled concern for American democracy or justice. The US Sentencing Guidelines are almost everything on the federal level.
Under the Guidelines, judges are encouraged to look at a defendant not as a person but a number of factors which add or detract from an offender “score.” For example, the main guidelines for drug-law violations set a base offense level based on the crime of conviction, the type of drug distributed and the weight.
Let’s explore a hypothetical example of how the Guidelines might apply. Defendant One is convicted for being a part of a drug distribution conspiracy that sold more than 40 grams but less than 60. His base offense level would usually get set at “18,” which, for someone with no criminal history, would mean a guidelines sentence of 27 to 33 months in federal prison.
But say Defendant One has a friend who asked the defendant if he could score him some anabolic steroids. He tried to dissuade his friend, but caved after his friend pleaded. His offense level is now “20.” If he also gave his friend a masking agent, his offense level is “22,” meaning a guidelines sentence of 41 to 51 months. Few judges, in this context, would revert to the original 27 to 33 months.
Here is a more extreme hypothetical. Defendant Two lives in a rural location not close to other homes with her teenage daughter. She starts using meth and makes her own batch for personal use on exactly one occasion. She never does it again because she is afraid of the risk to her and her daughter. But a concerned family member finds out and calls the FBI.
Regardless of the very small quantity of meth Defendant Two created, she will be treated like a high-volume trafficker, with a new offense level of at least “30.” That translates to 97 to 121 months in federal prison. Even with a three-level decrease for acceptance of responsibility, her score is still at least “27,” meaning 70 to 87 months of hard time.
Unsuccessful attempts are punished the exact same way as successful ones under federal law. Yet at a state level, in contrast, one real-life woman just received a year and a half in New York state prison for attempted manufacture of methamphetamine.
The Guidelines were created as a move toward “tough on crime” policies and are still decried by some federal judges as devastatingly harsh.
The US Sentencing Guidelines have, since 1984, been set by a supposedly-neutral US Sentencing Commission They were created as a move toward “tough on crime” policies and are still decried by some federal judges as devastatingly harsh.
The seven commissioners are appointed by the president and confirmed by the Senate, and receive staggered six-year terms. The acting chair when the most recent Guidelines were published, in 2018, was Alabama judge William H. Pryor, Jr.—a Federalist Society ally who once fought to have Anthony Ray Hinton executed for a murder he didn’t commit and thinks gay people should be jailed for having sex.
While Congress can mandate increases or decreases in harshness for specific offenses—usually increases—it’s up to the commissioners to determine what the aggravating and mitigating factors are.
Shockingly, the guidelines were mandatory until the Supreme Court made them advisory in 2005 through its decision in United States v. Booker, citing constitutional concerns. (Yet there are still many people in federal prison who are serving unconstitutional pre-Booker drug sentences to this day.)
At the same time, according to former federal judge and current Harvard Law Professor Nancy Gertner, the federal judiciary, which once overwhelmingly opposed the guidelines, has since become “passive” in mostly following them.
Arguably the worst part is that federal sentencing under the Guidelines takes into account all the defendant’s “relevant conduct”—including conduct as a kid, including whether or not the conduct was charged and including charges that have resulted in acquittal. And the standard of proof in court for aggravators is ”proof” by the preponderance of the evidence—which means considered more likely than not—rather than “beyond a reasonable doubt.”
Adherence to these guidelines is one of the main reasons why the federal system inflicts unconscionably long prison sentences for nonviolent drug-law violations—up to and including life without parole for supplying marijuana.
So no, Roger Stone will never be a poster-boy for criminal justice reform advocates. And no, criminal justice decisions should never be dictated or influenced by Trump tweets. But debate and reform of the Guidelines so central to Stone’s case are badly needed.
Surely using uncharged and unconvicted conduct to obtain much harsher sentences undermines basic due process?
Encouragingly, the Supreme Court has delivered further blows to the absolute jurisdiction of the US Sentencing Guidelines over the past decade.
For example, in Peugh v. United States (2013), the Court decided that when there is a time-gap between the offense conduct and sentencing, judges must use the guidelines at the time of the offense conduct, if the Guidelines were subsequently revised to become harsher.
But the Court needs to go further. Surely using uncharged and unconvicted conduct to obtain much harsher sentences for defendants undermines basic due process? And surely “related conduct” factors—if they have to be used at all to determine sentencing—should be subject to the same “beyond a reasonable doubt” burden of proof as the crime itself?
Supporters of mass incarceration need not worry that these changes would prevent the feds from putting people in prison. But such reforms would undermine prosecutors’ use of the Guidelines to grossly and arbitrarily inflate sentences without fear of getting those sentences overturned. And that would be one small step toward justice.