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home : insight & opinion : guest columns
March 29, 2020

2/19/2020 10:43:00 AM
Stone sentence illustrates court problem
For the Daily News

The Federal Sentencing Guidelines went into effect while I was serving as a Judicial Clerk to a federal judge here in Illinois. The judge had been on the bench since Carter had nominated him and this was some years later. One of the policy changes the new administrations thought needed was to remove discretion from judges when it came to sentencing.

It seemed unfair for a person to be convicted of a federal crime in Texas and receive a harsh sentence while another committing the identical crime in Montana received one significantly less harsh. To foster uniformity, the guidelines were passed by congress and signed into law binding all federal judges to sentence those convicted of crimes within the range of the applicable statutes and in consideration of the PSI generated by the Federal Probation officer assigned to the case. The PSI is a pre-sentence report that has a rubric that assigns values to such things as prior offenses, the nature of the offense just committed, the age of the defendant, whether they have shown remorse and are candidates for rehabilitation and so forth.

Roger Stone lied to Congress during the Muller investigation into the Russian meddling of the presidential election of 2016. He also lied to the FBI during that investigation and threatened the judge who was hearing the criminal case that was brought against him for doing so. So let's see; that perjury for lying under oath; obstruction of justice for intentionally misleading a federal agent investigating a crime; and face to face contempt of a federal judge. The jury found him guilty and a PSI was prepared. The prosecution team, that is the U.S. Attorneys assigned to the case, made a sentencing recommendation to the court which is one of the things the judge may consider in making her determination how long Mr. Stone should be in a federal penitentiary for his offenses.

There is some discretion, but not much. The statute requires that the sentence be within a certain range and to deviate from that requires special circumstances. Now the President has tweeted: "This is a horrible and very unfair situation. The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!"

The Attorney General passed the word down to lower the sentencing recommendation. The Prosecutors, all four of them, withdrew from the case, one of them resigning his position and leaving the service. This has never happened before so it is a big deal. Career federal prosecutors are seriously dedicated individuals. They serve and do their utmost to prosecute to the letter of the law regardless of which party is in power. While I was at the court, I worked with many of these men and women and there was no talk of politics or favors or looking the other way for some political reason or any other.

Pressure was applied somewhere, however, and this person is now added to the list of those that are somehow above the law for now. The list grows. The problem grows. Across the bureaucracy of our government from end to end the sea change of the last election has taken the form of a perfect storm. It's not the usual sort of business as usual as we have new party people doing what party people do. It's an aberration of the norm, which some may think was needed, but which may have unintended consequences.

We will see what the judge does on Friday at sentencing. She has her job for life, or is supposed to. I suppose she could be impeached for failing to let Mr. Stone off the hook he's put himself on. Even if she does impose the sentence the law requires, there is always the possibility of a Presidential Pardon and then probably a Medal of Freedom to go with it. I wish I was kidding when I say that.

One day, long ago, I was walking home from school when a guy out on the sidewalk handed me a pamphlet telling me how the Catholics were going to take over the country if Kennedy was elected and saying that there was an arsenal in the basement of every parish church for the day the Pope gave the order. "That's why he wants them to have so many kids and why their services are in some lingo we can't understand." (They were still in Latin at the time).

My neighbor Tony was Catholic so I asked him to ask the priest to let us have a look at the guns. He said he'd like to see them too so we went and asked and he laughed and took us down to the basement and showed us all around but there weren't any. He explained that the Pope didn't have the power to order Presidents what to do and wouldn't anyway.

I showed my mother the pamphlet when I got home and she said that I should meet Mr. Kennedy and make up my own mind about him. Since she was on the local party committee for his election we had the chance to hear him say a few words in Terre Haute and he sounded funny to me with his Boston accent but I liked him. We had liked Eisenhower at my house before that, and Truman before that apparently, but I never met them. A lot has changed since then.

One thing hasn't changed. People will lie; and if they do it under oath, or lie to the police or the FBI or congress investigating a crime, then it's a crime. It was when Eisenhower and Nixon and Reagan and both Bush's were President and it was when Kennedy and Johnson and Carter and Obama were too. It still is. What's changed is we have a new guy at the top of the chain of command that doesn't seem to know that.

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