Leonardo Angiulo: The Evolution of Federal Sentencing Guidelines

Monday, March 24, 2014

Leonardo Angiulo, GoLocalWorcester Legal Contributor

In some cases the question is not whether a person is going to jail and is, instead, how long they are going for. This can be especially true in the Federal system where the combination of sophisticated technologies and experienced law enforcement result in strong cases being presented for indictment and prosecution. In such cases, whether it comes as a result of a plea or after trial, a defendant may stand before a judge facing sentencing.

During the sentencing phase of a case in Federal court the parties and the judge speak, in part, about the applicable sentencing guidelines. The guidelines themselves are essentially formulas for how long a person should serve for a particular crime based on certain circumstances such as the weight of drugs involved, the use of weapons, existence of any mitigating factors and prior criminal involvement. When I say “should,” that is to say the guidelines are standards drafted by the United States Sentencing Commission also known as the USSC. The USSC is an independent group that is part of the judicial branch and organized in accordance with section 991 of title 28 of the United States Code. The group is made up of appointees and judges as well as the Attorney General acting as a non-voting member of the commission.

It's original formation came by legislative action back in 1984 and, as outlined in http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title28-chapter58&saved=%7CKHRpdGxlOjI4IHNlY3Rpb246OTk0IGVkaXRpb246cHJlbGltKSBPUiAoZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGUyOC1zZWN0aW9uOTk0KQ%3D%3D%7CdHJlZXNvcnQ%3D%7C%7C0%7Cfalse%7Cprelim&edition=prelim" target="_blank">28 USC 994, was intended to provide guidelines and policy statements for sentences unaffected by the race, sex, national origin, creed and socioeconomic status of offenders. The current guidelines manual published by the USSC includes a policy statement with basic objectives of ensuring the sentences imposed by courts would be actually be served, consistency in sentences among similar crimes and defendants, and proportionally appropriate sentences based on the nature of crimes. That same policy statement on page two of the guidelines manual includes the overarching theme of enhancing “the ability of the criminal justice system to combat crime through an effective, fair sentencing scheme.”

Implicit in this structure is the potential for social policies to impact the scheme. Subsequent offenders, for example, are subject to longer sentences under the theory that persons who persist in deviant behavior should suffer increasingly severe punishments in an effort to penalize effectively and encourage rehabilitation. Like any policy, however, sometimes it works better than others. One of the benefits of the USSC's organization is that it is flexible enough to allow amendment of guidelines when appropriate.

An example of amendments from the recent past include the Fair Sentencing Act of 2010 that famously addressed the 100:1 ratio disparity in punishment for crack cocaine and powder cocaine offenses. This amendment addressed a policy that, according to the American Civil Liberties Union https://www.aclu.org/drug-law-reform/president-obama-signs-bill-reducing-cocaine-sentencing-disparity " target="_blank">press release from August 3, 2010, represented a sentencing scheme based on “based on assumptions about crack cocaine which are now known to be false. . . [and] The impact of the disparity fell disproportionately on African-Americans.” The Fair Sentencing Act of 2010, which enjoyed bipartisan support including both Presidents George W. Bush and Obama, resulted in several important modifications including lowering the ratio between powder and crack penalties to 18:1, eliminating mandatory minimum sentences for simple possession of crack cocaine, and increasing emphasis on the individual defendant's role in any criminal enterprise for both aggravating and mitigating purposes.

The agenda for a recent public hearing held by the http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20140313/Agenda.htm" target="_blank">United States Sentencing Commission on March 13, 2014 presents drug sentencing guidelines generally as a renewed topic of consideration. That law enforcement and the defense bar seem to agree, at some level, that downward modification of the guidelines is appropriate is found in Attorney General Holder's press release of March 13, 2014. In that release the AG supports the USSC's proposed lowering of certain sentences because the amendment “would have the effect of modestly reducing guideline penalties for drug trafficking offenses while keeping the guidelines consistent with current statutory minimums - and continuing to ensure tough penalties for violent criminals, career criminals, or those who used weapons when committing drug crimes.”

Of note is that these downward amendment of guideline sentences come at a time of particularly high rates of incarceration in America. According to an article published by the Population Reference Bureau in August of 2012 the United States had the highest incarceration rate in the world for the previous ten years. As referenced in a chart generated by the Prison Policy Initiative that rate includes people held in local, state and federal facilities. While Federal policies resulting in potentially shorter sentences may not affect those held in state prisons it may inform decisions made by local legislatures about their own sentencing policies.

As Attorney General Holder states in the previously cited press release, there is a certain balance that the sentencing commission is seeking to accomplish. On the one hand is the need for the effectiveness of law enforcement. On the other, the need for proportionally appropriate punishments and the opportunity for meaningful rehabilitation.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].

Related Slideshow: 10 Big Companies with Recent Major Security Breaches

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Epsilon

March 2011

Tens of millions affected

In March 2011, Epsilon, the world's largest permission-based email marketing service, announced that the names and email addresses of customers of Citigroup, TiVo, and many other U.S. companies, were exposed in a huge data breach. The hack affected names and email addresses stored in over 108 retail stores, major financial firms and non-profit organizations like College Board. At the time of the incident, Epsilon had more than 2,500 clients sending 40 billion emails annually.

Result: Epsilon notified clients of the breach on April 1. Epsilon's clients then notified their customers of the hack. Epsilon has stated that 50 clients were affected, but the exact number of names and email addresses has not been released. Computerworld.com estimated that "tens of millions" of people were affected.

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Sony

April 2011

77 million customers affected

In the spring of 2011, Sony was hacked through its through its PlayStation Network twice. The first security breach exposed customers' personal information to hackers, but not their credit card information. The second hack, disclosed in late April, did result in customers' credit card information being stolen. The pair of hacks affected 77 million people.

Result: Two weeks after the breach, Sony released a PlayStation 3 firmware update as a security patch. The firmware required users to change their password.

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Global Payment Systems

March 2012

7 million customers affected

In the spring of 2012, the credit card processor service Global Payment Systems discovered that 1.5 million credit card records had been stolen from its system. Additionally, roughly 5.5 million consumer records were compromised, bringing the total to 7 million.

Result: As a result of the breach, Global Payments was delisted until it could prove it was in compliance with security standards. In April 2013, the payment card networks returned Global Payments its client list after it proved it was compliant with security standards.

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Zappos

January 2012

24 million customers affected

In early 2012, the online retail store Zappos announced that it had been hacked, exposing the names, addresses, phone numbers, partial credit card numbers, and email addresses of 24 million customers.

Result: One day following the cyberattack, Zappos sent emails to all customers directing them to change their passwords.

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Adobe Systems

October 2013

152 million customers affected

In October, the computer software company Adobe disclosed that hackers obtained personal data for almost 38 million of its customers, including names, credit and debit card numbers, and expiration dates. In November, it was discovered that the hackers had posted the personal data of more than 150 million Adobe users.

Adobe Call Center: 1-800-833-6687

For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].

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Target

December 2013

110 million customers affected

In December, Target announced that 40 million customer accounts were hacked stealing encrypted PIN numbers, credit and debit card numbers, card expiration dates, and the embedded code on the magnetic strip on the back of cars. Additionally, 70 million customers' personal information was compromised.

Target Call Center: 1-800-440-0680

For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].

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Neiman Marcus

January 2014

1.1 million customers affected

In January, high-end retailer Neiman Marcus revealed more than 1.1 million customers were affected in hack. Between July 2013 and October 2013, customer payment cards could have been potentially visible to hackers. Additionally, 2,400 unique customer payment cards used at Neiman Marcus stores were subsequently used fraudulently.

Neiman Marcus Call Center: 1-888-888-4757

For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].

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Yahoo

January 2014

Up to 81 million U.S. users

Late last month, Yahoo disclosed that Yahoo's email customers may have had their passwords compromised through a third-party application. The web company recently identified a coordinated effort to gain unauthorized access to Yahoo Mail accounts, and notified RI Attorney General Peter Kilmartin. Upon discovery, the Company took action, urging users to reset passwords on impacted accounts.

Yahoo Call Center: 1-800-318-0612

For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].

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Michaels Stores

January 2014

Number of affected customers yet to be determined

In January, Michaels Stores announced that it is investigating a possible data security breach that may have led to customers' debit and credit card information being compromised. Michaels has more than 1,250 locations in the United States, including 29 in Massachusetts.

Michaels Stores Call Center: 1-800-642-4235

For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].

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White Lodging - Marriott, Hilton, Sheraton, Westin

February 2014

Number of affected customers yet to be determined  

This week, the hospitality company White Lodging Services announced that a data breach occurred at 14 of its properties including Marriott, Radisson, Renaissance, Sheraton, Westin and Holiday Inn franchises around the country. Compromised information may have included names printed on credit or debit cards, the actual numbers, the security codes and expiration dates.  

White Lodging Call Center: 219-472-2900.

For more information, MA residents may contact the Consumer Protection Division at the Office of Attorney General at 617-727-8400 or by email at [email protected].