Federal Criminal Sentencing: The Disparity Still Exists

An unfortunate reality of practicing federal criminal law in San Diego is that one of the factors that still influences a defendant's sentence the most is which District Court Judge is assigned to the case. Unlike state court which permits a defendant to disqualify one judge, the federal judge assigned to the case will remain assigned to the case for better or for worse.

The cases where unequal judicial philosophy creates the most disparities of sentencing is in drug cases. I have seen, for example, defendants with the same quantity of methamphetamine and who have no criminal records receive a sixteen year sentence in one courtroom and four years in another. The reason for this is despite federal decisions that allow the court to find “minor role” for mere couriers or drug mules, a couple of District Court judges generally don't give a minor role reduction in these circumstances.

This should not happening. Waiting for the assignment of the District Court Judge has become a kind of macabre lotto where more important than the facts of the case is the judicial philosophy of the judge assigned to the case.

And in the Southern District (San Diego and El Centro) defendants have it comparatively good. The United States Attorney in San Diego has several fast track and “combination of circumstances” programs, which makes most drug sentences in this District much lower than lets say in Montana or South Dakota.

We have one set of federal drug laws for all states. And there is one Attorney General, and ultimately one President running the show. The factors that should matter in calculating a sentence should be: background of offender, presence or absence of criminal record, nature of the offense, attitude of the defendant and prospects for rehabilitation and not who is the judge assigned to the case, and the area that offense occurred.
The United States Sentencing Guidelines and the Sentencing Reform Acto of 1984 may have been a good idea, but they are an abject failure. It is time to go back to the drawing board. And it is also time to realize that judges should uniformly apply the law so that it no longer matters so much the name of the judge who is assigned to the matter. After all isn't one of our core legal principles, “equal justice under the law.?”