Monday, January 17, 2005

The Booker Effect--Higher Sentences?

While the Supreme Court's decision in Booker is still being parsed, one fairly consistent view of its effect is that with the demise of the rigidity of the mandatory federal Sentencing Guidelines, sentences are likely to move lower.  That may well be true in the drug area, at least for lower-level operatives who get hit with high sentences because of the overall quantity of drugs, but in the public corruption area the effect of Booker may be increased sentences.  As the federal government has stepped up its investigations of corruption at the state and local level--encouraged by last year's Supreme Court decision in Sabri v. United States--more convictions (and sentences) have resulted involving comparatively small amounts of money.  The Sentencing Guidelines put substantial weight on the amount at issue, which can result in a fairly lenient sentence, even if the municipality or other governmental body had few resources and could ill-afford any loss.  An article in the New Orleans Times-Picayune (Jan. 15) highlights this point in discussing the sentencing of payroll clerk who embezzled $71,000 from a local school district and received a two-year sentence.  The article states:

Louis Serrano lucked out in getting two years in federal prison, considering a new decision by the U.S. Supreme Court that would have given his judge authority to hand the convicted embezzler a stiffer sentence.  "I would have," U.S. District Court Judge Jay Zainey said this week, not long after the Supreme court ruled that the federal sentencing guidelines are no longer mandatory.  Serrano, who pleaded guilty to helping steal $71,000 from the city's public school system while working as a payroll clerk there, got the maximum sentence under the guidelines at the time: two years.  He could have faced a decade or more.  Zainey told Serrano in December that he deserved more time than the law allowed, but like judges across the nation, he was constrained by the formula spelled out in the guidelines, which typically gives first offenders like him lighter penalties.

In a jurisdiction like the Eastern District of Louisiana, which has its fair share (and maybe more) of public corruption, the message sent by the judges after Booker will not be welcomed by defendants in corruption cases.(ph)

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