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Appeals Judge Calls Sentencing Guidelines a Farce

October 25, 1991

WASHINGTON (AP) _ Federal sentencing guidelines are ″a bit of a farce″ because they are too rigid and often result in unfairly harsh terms, a federal appeals court judge said Friday.

Judge Harry T. Edwards reluctantly concurred in a ruling that a lower court judge went too far in reducing the sentence of a first-time drug offender who was considered a good prospect for rehabilitation.

″I am bound by the system because Congress established it,″ wrote Edwards, who also said, ″This case is an example of how the guidelines work at their worst.″

Edwards joined the growing debate among lawyers, judges and advocates over the sentencing guidelines, which are intended to promote fairness by giving federal judges less leeway in setting prison terms.

The rules, in effect since November 1987, aim to ensure that defendants across the country receive similar sentences for similar types of crimes.

Instead, Edwards wrote, ″the guidelines merely substitute one problem for another, and the present problem may be worse than its predecessor.″

In the case decided Friday by the U.S. Court of Appeals for the District of Columbia Circuit, defendant Kelvin Harrington - then a drug addict - had been convicted of three counts of possession and distribution of cocaine.

The sentencing guidelines set a range of 97 to 121 months for his offense, but U.S. District Judge Louis F. Oberdorfer imposed a five-year term on the ground that Harrington’s prospects for drug rehabilitation were very good.

Judges may depart from the sentencing guidelines only if they find that the rules don’t allow for the particular circumstances of the case. Oberdorfer made such a finding in Harrington’s case.

But Edwards and Judge Ruth B. Ginsburg ordered Harrington resentenced, saying that cases such as his are covered by the guidelines. But the reduction in sentence would be smaller than what Oberdorfer allowed, the judges said.

Harrington could be given a two-level sentence reduction for acceptance of responsibility for his crime, they said. That would lead to a minimum sentence of 78 months, according to the guidelines.

Judges can reduce sentences further only ″on rare occasion,″ Ginsburg wrote.

Judge Laurence H. Silberman, dissenting from the ruling, argued that the sentencing guidelines don’t allow any reduction for defendants who are considered good prospects for drug rehabilitation.

″A defendant’s participation in a drug treatment program does not evince his acceptance of responsibility for the crime he committed...″ Silberman wrote. ″Rather, it demonstrates only the defendant’s desire to improve himself ... and perhaps to obtain a lighter sentence.″

Edwards quoted extensively from the Hans Christian Andersen tale ″The Emperor’s New Clothes″ and said, ″We continue to enforce the guidelines as if, by magic, they have produced uniformity and fairness, when in fact we know it is not so.″

″Like the emperor’s new clothes, the sentencing guidelines are a bit of a farce,″ he wrote, adding that the rules make it relatively easy for judges to impose heavier sentences but difficult to grant a lighter term when warranted.

But John Steer, general counsel to the U.S. Sentencing Commission - which wrote the guidelines approved by Congress - disagreed.

In appeals court rulings across the country, Steer said, ″For the most part they are making it very difficult to depart upward or allow a departure very far. They stretch to allow downward departure.″

Harrington’s court-appointed attorney, Allan P. MacKinnon, said he may ask the full appellate court to reconsider the decision. Oberdorfer was correct in deciding that the defendant’s sentence could be reduced to five years, the attorney said.