From the October 2005 Idaho Observer:

Sentencing reform within our grasp now

by Perry-Adron: McCullough, Terminal Island, California

There are two current issues vitally important to those imprisoned in the United States: "HR 3072, A Bill to Revive Parole" and the unconstitutionality of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in the wake of United States v. Booker, 125 S Ct 738 (2005).

HR 3072 was introduced to the House of Representatives by Dan Davis (D-IL) on June 27, 2005. This bill, if enacted into law, will repeal the sentencing guidelines established by the Sentencing Reform Act of 1986. Most of the States have replaced the former system of parole with the guidelines, which require the prisoner to serve 87.2 percent of the sentence, under the government’s formula for calculating good time, plus a term of "supervised release." If Davis’ bill becomes law, those States which have followed the Fed by enacting sentencing guidelines will also repeal them. This means that both federal and state prisoners (and their families/friends) need to support the passage of HR 3072.

Congress ostensibly enacted the sentencing guidelines [also known as "mandatory minimums"] to eliminate disparate sentences for similarly-situated defendants, but they accomplished the opposite. The guidelines removed sentencing discretion from judges and gave it to prosecutors.

By choosing certain selected "offenses" [federal statutes cannot be called crimes because a crime requires a victim, and most federal statutes do not, so the feds call them "offenses"] to present to the Grand Jury [which never refuses the prosecutor], the prosecutor can specify the ultimate sentence that each defendant will receive.

He can then argue for "enhancements" of the "base offense" before a judge at sentencing. Under the guidelines, a judge may increase sentence upon consideration of facts of a case never presented to the jury, nor admitted by the defendant in a plea bargain. The sentence could be enhanced for "relevant conduct"—conduct committed by fellow conspirators, even if the defendant did not know about it; for drug quantities not specified in the indictment or determined by the jury; for obstruction of justice if the defendant testified at trial, but was nevertheless convicted; for possession of a firearm, even if the gun was not in the possession of the defendant during the commission of the offense; and, for a greater role in the offense, i.e. "leader or organizer."

In some cases those enhancements could amount to more prison time than sentencing for the actual offense. In my case the judge added 22 years of enhancements to a minimum mandatory sentence of 10 years for a first, nonviolent, victimless offense. The enhancements were added, not because of what I’d done before I was arrested, but for impiety/contempt for the government and the so-called "judge" during pretrial proceedings.

I’d been entrapped by venal agents and denied the presumption of innocence by the judge, so I fought with all my might. One does not question the authority of those in power in America and just walk away. They will not allow anyone to fight and win. They have the power to bribe witnesses against the defendant. They have the power to destroy exculpatory evidence, and they do. They have the power to manufacture guilty evidence, and they do. The judge controls every word presented to the jury, so the jury only hears what the judge wants it to hear. Nearly every defendant is charged with "conspiracy" and no one can beat a conspiracy charge, because it requires the defendant to prove a negative. How does one prove he didn’t think about doing something?

If HR 3072 becomes law, and the sentencing guidelines are abolished, the judge will only be able to sentence the defendant for conduct admitted to by the defendant or conduct for which the defendant had been convicted by the jury. The defendant will be eligible for parole at one-third of the sentence imposed, and released if he’s conducted himself correctly during his/her confinement.

Every prisoner in America should be asking his friends and family to inform their Congresspersons that they should support passage of HR 3072. Ask your Congressperson to co-sponsor the bill and force it out of the Judiciary Committee and onto the floor of the House for a vote. Once that is accomplished it has to go to the Senate and the process is repeated, before it can be presented to the president for his signature. The advantage we have with HR 3072 is that it would be "retroactive" to very prisoner with a release date. Those serving life-without-possibility-of parole will not be affected.

Bills that increase punishment are traditionally popular in Congress, while Bills like HR 3072 that decrease punishment are not. It will be difficult to get HR 3072 passed because reps and senators do not want to appear "soft on crime." However, if they receive a million phone calls, FAXes, letters and emails, politicians will respond. So send them two million emails, letters and FAXes; give them two million phone calls.

The time for change is, indeed, ripening politically. In January, 2005, the Supreme Court decided United States v. Booker, in which it struck-down as unconstitutional the portions of the federal sentencing guidelines that made use of the guidelines mandatory. The federal guidelines are now merely "advisory," but most judges still use them. What Booker did was uphold the belief that only a jury can determine guilt of a defendant. When the prosecutor and the judge, acting in concert, determine a defendant’s guilt it violates his Sixth Amendment right to trial by jury.

People like me, who are serving sentences that consist largely of punishment inflicted by the prosecutor and the judge, should be allowed to obtain revision of the illegal sentence under Booker. However, people like me imprisoned prior to 1996, have commonly exhausted their appellate remedies [and have even filed motions to vacate, set aside, or correct a sentence under Title 28 USC § 2255] and cannot get back into court to argue the applicability of Booker in their case.

AEDPA

In 1996, following the bombing of the Murrah Federal Building in Oklahoma City, Congress hurriedly passed the AEDPA. Added to the AEDPA was a "rider" called the Habeas Corpus Reform Act. Since the first attempt to bomb the World Trade Center in New York in 1993, the Congress had failed in several attempts to pass habeas corpus "reform." The reason Congress could not pass habeas corpus reform is because the "Great writ of Habeas Corpus" cannot be suspended. Constitutionally-speaking, the government must first produce a "body (victim") before subjecting a defendant to criminal prosecution. Article I, Section 9, Clause 2 of the Constitution specifically prevents interference with the people’s right to use the writ of habeas corpus; again and again if necessary.

Moreover, the First Article in Amendment Six clearly states: "Congress shall make no law prohibiting the right of the people to petition the Government for a redress of grievances." But where Congress feels that it may ignore the Constitution without causing an uproar among the people it will do so. So after repeated failures at attempted habeas corpus reform, the Murrah Federal Building was destroyed by an ANFO bomb (allegedly planted in a Ryder Rental Truck, and parked 50 feet from the front of the building by Timothy McVeigh and Terry Nichols) and pictures of dead babies being carried out of the partially-demolished building were printed by every news source in America. Then, "Voila!"—Habeas corpus reform sailed through Congress on the back of the AEDPA.

As a result of the AEDPA, neither I, nor any prisoner situated like me, can exercise their right to petition the government for a redress of a Sixth Amendment violation established in Booker. In other words the AEDPA is unconstitutional as applied to people like me, but we cannot get back into court to make that claim, either.

What is the justification for denying anyone their First Amendment right to access the courts to seek redress for Sixth Amendment violations? The AEDPA says that the government has a greater right to "finality in the judgement" than Americans have to liberty. What’s wrong with that? Since when does a government have rights? People have unalienable rights endowed by God. Governments are "instituted among Men" to "secure these rights," not to destroy them (See Declaration of Independence).

Our Government is completely out of control. There is no Representative Republic in America—but only we can change that. To that end, The Idaho Observer is a great service to America’s people.