Washblog

It's extremely important for America to understand that criminal behavior should not be tolerated at any level. However, hiding, denying, or obliterating the truth should not be tolerated either and should be counted as injustice. A few things I would like to bring to readers...

In 1981, Washington's Sentencing Reform Act (SRA) replaced the state's sentencing guidelines and parole system, which allowed a high level of judicial discretion and variability, with a set of mandatory guidelines. Similar changes to sentencing structures occurred on the Federal level and in other states nationwide.

Since the mandatory sentencing was put in place, there have been over 200 amendments to the SRA, many of them increasing sentence harshness. There has also been an explosion of the prison population:

State prison population: "The use of prison in Washington was quite stable from 1930 to 1980. On any given day during this 50-year period, roughly two persons were incarcerated in a state prison out of every 1,000 people in Washington between the ages of 18 and 49.2 ... Today, Washington's prison incarceration rate stands at about 6 adults incarcerated per 1,000 -- nearly three times the rate 30 years ago." (Options to Stabilize Prison Populations in Washington, WA State Institute for Public Policy, 2006. )

Federal prison population: "Between 1986 and 2002, average sentence length doubled on the federal level. Between 1988 and 2006, the federal prison population grew from 24,000 to 188,000, with over 65% sentenced being Black or Hispanic." (Letter to Honorable Ricardo Hinojosa, US Sentencing Commission from Jon M. Sands, Federal Public Defender, 1/10/06: Report on Federal Sentencing since US v Booker.)

The two quotes above consider only "slices" of the incarcerated American population. Between state and federal prisons and jails, the national incarceration rate is at more than 1 in 100 people nationally -- an historical worldwide high. It is estimated that one in 10 American children have a parent behind bars or under community supervision at any one time.

The increase in sentence harshness has been primarily for the kind of crimes that poor people and people of color commit. As a result, large numbers of people from these demographics have been "disappearing" behind walls. This trend is devastating families and communities of color. Nationally, more than half our incarcerated population consists of people of color.

Recent court cases have addressed how we sentence people and, if these cases are applied to state laws, we may see a more fair system.

A 2005 U.S. Supreme Court case, United States v. Booker, held that sentence guidelines are constitutional only if they are advisory and not mandatory. It also held that a jury must determine, beyond a reasonable doubt, any fact that increases the sentence of a defendant over the high range of the guidelines in place. A District Court case, United States v. Kandirakis, commented on Booker: In Kandirakis, US District Judge William G. Young wrote:

"What is overlooked in post-Booker discussions is the fact that, for 17 years, Federal Courts have been sentencing offenders unconstitutionally. The Commentary in Section 6A1.3 (Federal Sentencing Guidelines) states that the use of a Preponderance of the Evidence standard satisfied Due Process. The Court's holding today in Booker corrects that mistaken belief. The Fifth Amendment requires 'proof beyond a reasonable doubt', not by a preponderance of the evidence of any fact that increases the sentence beyond what could have been lawfully on the bases of facts found by the Jury or admitted by the defendant."

Notice that Justice Young stated it is fact that Federal courts have been sentencing offenders unconstitutionally for 17 years. Is there a voice in the silence of this mayhem of injustice? Do we lie down and cover ourselves with this blanket only to realize that this "justice" is artificial in its properties, stance, and purpose?

In 2000, the United States Supreme Court ruled that, "it is unconstitutional for the legislature to remove from the jury the assessment of facts that increases the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." (Apprendi v. New Jersey).

It is further stated, based on the ruling in Apprendi and the concept of fundamental fairness, criminal sentences should be held to a heightened standard; mere preponderance is insufficient and constitutionally lacking.

As American citizens, you pride yourselves on voting for the right bills. However, the legislatures are extremely insightful to how much of a bill to be voted on is disclosed to the public, leaving you intentionally and thoroughly uninformed. They give you the surface and highlights of a bill that will attract public support. When the voters hear this bill they consider the condition of America, societies, neighborhoods, and families. The bill seems appropriate and they support it. And they nominate candidates and dignitaries to carry out promises. However, the intended targets and purpose of the bills and the candidates are not revealed, and in some cases the nature of legislation is changed after it has been voted upon, reason being ... particular bills would not gain public support and certain candidates would not be elected if the public understood what they represented. They do not want you to know how this very bill will affect you or your loved-ones. One day, when you question the injustice done to you, you will hear these words, "But you voted for this."

Under the principles set forth by the Supreme Court in Apprendi and its progeny, the standard of preponderance of the evidence under Section 6A1.3 of the Federal Sentencing Guidelines is clearly unconstitutional. Under the same principles, the allowance under Section 1B1.3 of the use of uncharged, dismissed and acquitted conduct in a criminal sentence calculation is also clearly unconstitutional. However, the lower courts continue to incorrectly apply Apprendi, Blakely and Booker by wrongly concluding that under the advisory scheme, it is okay to violate a defendant's constitutional rights. The other sad fact is the lower courts have already concluded that the Apprendi, Blakely and Booker decisions do not apply retroactively. Therefore, the prisoners who will have exhausted their direct appeals have no legal recourse because their convictions and sentences are final, even though they were unconstitutionally imposed. Because the Supreme Court has exhibited reluctance in allowing the Apprendi line of cases retroactively. What are our options? "The voice of the public." YOU!

Because the Supreme Court decision in Apprendi, Blakely and Booker have effectively nullified the preponderance of evidence standard under Section 6A1.3 and the use of uncharged, dismissed and acquitted conduct under Section 1B1.3, we should all start petitioning the U.S. Sentencing Commission to amend the sentencing guidelines to exclude the use of preponderance of the evidence and the use of uncharged, dismissed and acquitted conduct from the guidelines. This would allow defendants whose convictions and sentences are unconstitutional, yet found to be final, to utilize 18 U.S.C. 227 3582 (c) 2 as a vehicle to present constitutional claims. The reason the Supreme Court is reluctant to apply the Apprendi line of cases retroactively and correct such unconstitutional sentences is because they do not want to take the time necessary to correct the overwhelming amount of unconstitutional violations committed by them.

The United States Sentencing Guidelines were designed to ensure fairness and equality in the Federal sentencing forum. Which we now lack under the advisory system. I suggest that you start writing the Sentencing Commission, Congressmen, Representatives and Judges, present this issue to them and ask them why they do not correct such unconstitutional miscarriages of justice.

I am asking for your support. Incarcerated people are not regarded as citizens and have few rights and, therefore, do not have the ear of those in power. There is an answer that will change this injustice. The cost to you, the taxpayer is but a fraction of that which is currently collected to house these unconstitutionally convicted people. Think of the money that will be saved in the long run by correcting this injustice. If you present these questions to the proper authorities justice may well be a reality for this country.

Go further than you have gone before. Become the voice of free America.

Ask the questions that need asking, such as ... When will second degree assaults become non-Strike offenses? What was the real intent for the 3rd Strikes law? Why are Judges allowed to hand down excessive sentences without the jury knowing the facts of the case leading to a 3rd Strike or excessive sentence? Investigate the Criminal Justice System. Spend a day in a Criminal Court proceeding, ask questions.

Please help to put an end to racial injustice in the Judicial System of America.