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November 16, 1989


Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE

The issue before the Court is the constitutionality of the newly-enacted sentencing statute, the guidelines issued by the Sentencing Commission pursuant thereto, and certain prosecutorial practices related to these measures.

 On August 29, 1988, this Court suggested in United States v. Bethancurt, 692 F. Supp. 1427 (D.D.C. 1988), that the statute and the guidelines might be flawed because of due process deficiencies and a lack of fundamental fairness. Thereafter, the Supreme Court upheld the constitutionality of the sentencing law against challenges based on separation of powers and delegation of authority grounds. Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989). However, the Supreme Court was not called upon in that case to consider due process issues.

 More recently, fact patterns indicating due process problems in sentencing have continued to emerge in criminal cases before this Court and elsewhere. This fall, the Court of Appeals for this Circuit, in the remand of a criminal case, "directed the district court to address" the due process challenge that had been asserted there. United States v. Baskin, 280 U.S. App. D.C. 366, 886 F.2d 383 (1989). It thus appears that, notwithstanding Mistretta, it is open to the lower courts to consider due process issues arising in the context of the sentencing law and the sentencing guidelines.

 The five cases before the Court raise such issues. As will be seen below, all of them highlight substantial due process problems inherent in the statute and the guidelines -- problems that are exacerbated by policies and practices adopted by the United States Attorney in this District in their implementation. For the reasons stated infra, the Court is of the view that the statute and the guidelines are unconstitutional as so applied.



 A. Stephaney Roberts1

 On February 7, 1989, the defendant was indicted for distribution of cocaine base (crack) and use of a firearm. A Magistrate ordered her held without bond. *fn2" The parties thereafter engaged in extended plea negotiations. *fn3" Counsel for defendant related at a motions hearing held on September 7, 1989, that his client had several times waived her speedy trial rights in order that, in the interim, she might have the opportunity to provide assistance to the law enforcement authorities. In the course of that cooperation with law enforcement, defendant met with and gave information to two agents of the Federal Bureau of Investigation, an agent of the Drug Enforcement Administration, and several Assistant U.S. Attorneys. According to counsel, notwithstanding her significant assistance and the fact that an understanding had been reached that substantial leniency would be accorded to her on account of that assistance, the prosecution ultimately agreed only to permit defendant to plead guilty to the drug distribution charge which carries a mandatory minimum sentence of ten years, the theory being that her cooperation was insubstantial. Defendant filed a motion requesting judicial assistance.

 Upon inquiry by the Court, the prosecutor assigned to the case corroborated the defense contention that defendant had provided substantial assistance to law enforcement authorities, such that a motion pursuant to 18 U.S.C. § 3553(e) for a departure from the mandatory minimum sentence provisions of the Code as well as a motion for a departure pursuant to section 5K1.1 of the Sentencing Commission guidelines were warranted, stating that "if it were up to me . . . I would file a departure request." *fn4" However, the United States Attorney for this District has established a so-called Departure Committee which passes on all such requests, and this committee has declined to authorize a departure. Accordingly, no prosecution motion under either section 3553(e) or section 5K1.1 has been filed.

 B. Jane Doe5

 On February 25, 1989, defendant was arrested at the District of Columbia railroad station; a search of bags located in the coach in her vicinity revealed 22 kilograms of marijuana which was ascribed by the police to this defendant and her companion (who is a fugitive). On March 23, 1989, defendant was indicted for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(b)(1)(D) and 18 U.S.C. § 2. Defendant pleaded guilty to these charges, with the understanding that the U.S. Attorney's Office would move for a departure from the sentence prescribed by the guidelines upon her cooperation. *fn6"

 Defendant and her counsel claim that she has, in fact, provided substantial cooperation to law enforcement authorities, but the U.S. Attorney's Office Departure Committee, for reasons which have remained secret to all, including the Court, has decided that her cooperation was insufficient for a departure from the guidelines sentence or a reduction pursuant to 18 U.S.C. § 3553(e). The government accordingly demands that the Court sentence the defendant in accordance with the guidelines without any departure.

 C. Mills, Holland, and Wonson

 Albert Mills and Vernon Holland were presented in the Superior Court of the District of Columbia on February 18, 1989, on a complaint of possession with intent to distribute cocaine, in violation of D.C. Code § 33-541; a Superior Court indictment was returned on April 19, 1989, for the same offense; and trial was set for October 5, 1989. The prosecution extended to defendants a plea offer for the offense of attempted possession with intent to distribute cocaine, which carries a one-year penalty. Defendants did not accept the offer, or at least not in what the government considered sufficient time, *fn7" and on the very day of the trial, the matter was continued at the government's request to October 17, 1989. However, even before the request for a continuance was made, that is, on September 21, 1989, the U.S. Attorney's Office secured indictments in this Court against these defendants, *fn8" charging them with violations of 21 U.S.C. § 841(b)(1)(B)(iii) -- an offense carrying a penalty of imprisonment for five to forty years. Pending before the Court at this time are defense motions by Mills to dismiss for violations of the Speedy Trial Act and of the constitutional prohibition against double jeopardy, and a government response. In addition, Mills has moved for a dismissal on account of prosecutorial misconduct.

 Kenneth Wonson was arrested on September 5, 1988; a complaint was filed in D.C. Superior Court the same day; and an indictment was thereafter returned in that court charging the defendant with possession with intent to distribute cocaine in violation of D.C.Code § 33-541(a)(1) and assault on a police officer in violation of D.C.Code § 22-505(a). The case was pending in Superior Court from that time on until October 11, 1989. A full year after his Superior Court appearance, on September 12, 1989, the defendant was indicted in this Court for offenses that were substantively identical with those with which he had previously been charged in Superior Court. *fn9" His federal court indictment, like those of Mills and Holland, resulted from his failure to accept a government plea offer. *fn10" The defendant has moved for a dismissal of the indictment on various grounds.

 While the Court is considering the specific issues raised by the motions filed in these five cases, it will also discuss the broader due process issues presented thereby and by the interplay between the sentencing statute, the sentencing guidelines, and the prosecutorial practices.


 Prosecutorial Management of the Guidelines

 In 1984, upon concluding that the sentencing decisions of the various federal judges, particularly judges in different districts, differed widely, Congress adopted the current sentencing law *fn11" , which has as its dominant purpose the elimination of judicially-created disparities. *fn12" Such disparities clearly were a problem needing attention and remedying. *fn13" But while the remedy adopted by the Congress has reduced the opportunity for sentencing disparities caused by judges, it has not solved the overall disparity problem but has merely shifted responsibility therefor to other officials.

 The sentencing statute has largely replaced the traditional role of judges in the critical sentencing phase of the criminal process by vesting most sentencing decisions in prosecutors, and that law and the guidelines issued pursuant thereto have thus effected what may be the most fundamental change in the criminal justice system to have occurred within the past generation. *fn14" Indeed, the de facto transfer of much of the responsibility for sentencing from impartial judges to prosecutors has had the effect of disturbing the due process balance essential to the fairness of criminal litigation.

 As explained below, these developments have been brought about by a combination of two factors: first, the prosecution almost invariably has a choice among a considerable number of statutes and guideline provisions for proceeding against a defendant accused of criminal activity; and second, the mandatory sentencing laws and the guidelines have brought about such relative inflexibility with respect to sentencing that, once the charges are fixed, the judicial contribution is in a substantial proportion of the cases largely ministerial.

 A. Availability of Statutory Options

 As a consequence of the proliferation of criminal laws that has occurred in recent years, almost any criminal act can today be prosecuted, at the option of the prosecutor, on the basis of a great many different charges, from an entire menu of substantive offenses, to various conspiracy counts, aiding and abetting, and any number of enhancements.

 In the area of drug offenses, if an individual is arrested in possession of what may be termed a medium amount of cocaine base (crack), say, about two ounces (56 grams), the prosecutor has a choice in the typical situation among the following statutory options, which he may or may not exercise at his discretion: simple possession of crack; *fn15" possession with intent to distribute *fn16" crack; *fn17" possession with intent to distribute 5 grams or more of crack; *fn18" possession with intent to distribute 50 grams or more of crack; *fn19" conspiracy; *fn20" drug conspiracy involving the distribution of 5 grams or more of crack; *fn21" drug conspiracy involving the distribution of 50 grams or more of crack; *fn22" engaging in a pattern of racketeering; *fn23" conspiracy to engage in a pattern of racketeering; *fn24" engaging in a continuing criminal enterprise; *fn25" use of a firearm in aid of drug trafficking; *fn26" use of juveniles; *fn27" drug trafficking by one previously convicted of a similar drug offense; *fn28" assault with a dangerous weapon *fn29" -- to cite only the more obvious of the available alternatives. *fn30"

 Moreover, when choosing one or more of these statutory offenses as a basis for indictment, the prosecution is not faced, as in the past, with a broad area available for judicial discretion; the Sentencing Commission has given to each offense a specific point value equivalent to a certain number of months of confinement. *fn31" The sentence the court must impose, absent a departure (see note 39, infra, must conform to that direction.

 While each of these offenses has different elements and thus superficially stands on its own, in actuality most of the offenses are interchangeable and can be charged or not charged against a particular defendant in the prosecution's discretion. Depending upon what the prosecution chooses to claim, the mechanics of choosing a charge and hence the sentence, *fn32" operate as follows. The prosecution might initially charge the defendant either with possession with intent to distribute 50 or more grams of crack, an offense with a minimum penalty of ten years and a maximum of life imprisonment, or with possession with intent to distribute 5 or more grams of crack, which has a minimum penalty of five years and a maximum of forty years. *fn33" At the time of trial or after the plea, the prosecutor then has the further choice of claiming factually that the defendant *fn34" possessed 5 grams of crack or more than 50 grams, the former resulting in a sentence of 70 to 87 months (26 offense levels), the latter in a sentence of 135 to 168 months (32 offense levels). The prosecution could increase the base level to 38, and the sentence to 262 to 327 months, by introducing evidence that serious bodily injury resulted from the use of the substance. This latter sentence could be further increased to life imprisonment (43 levels) depending upon whether the prosecution claimed or did not claim that the defendant had committed the crime after a prior conviction for a similar offense.

 The prosecution is not limited to determining these base scores; additional opportunities exist for dictating the defendant's sentence, inasmuch as the choice of subsidiary facts asserted or not asserted for purposes of guideline applications is equally broad and equally critical. Let it be assumed, for example, that a particular defendant is charged with possession with intent to distribute 5 or more grams of crack, an offense which, as noted above, the Sentencing Commission has decided must be punished by imprisonment for 70 to 87 months, the prosecutor can still vary this presumed sentence up or down as follows. He may claim that the defendant had a weapon (as is typically a fact), and the sentence would thereby be increased by 17 to 21 months (to 28 offense levels); *fn35" he may additionally assert that the victim was unusually vulnerable, thereby adding 21 to 27 months to the sentence (to offense level 30); or he may claim that the defendant was a supervisor in the drug scheme, a claim that would raise the sentence by an additional 27 to 33 months (to offense level 32). *fn36" It is important to keep in mind that if the prosecution chooses not to make these claims -- as it often will not, because of a plea bargain or perhaps simply as an exercise of discretion -- none of these penalties will be added to the sentence even if the factual predicate therefor exists. *fn37"

 Because of these many variables, and others, the prosecutor has de facto control not only of the charges against a defendant but also of the sentence that must and will be imposed. *fn38" In short, the prosecutor's selection of the charges available to him from his large arsenal amounts at the same time to an almost totally precise selection of the ultimate sentence to be imposed upon conviction or plea of guilty. It follows that, when the judge proceeds, with great and historical solemnity, to pronounce the sentence, he has by and large had no substantive role ...

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