The Supreme Court’s decision to strike down mandatory federal sentencing guidelines and the potential sunset this year of several provisions of the USA Patriot Act could hinder federal prosecutors’ efforts to fight terrorism and crime, said Paul McNulty, U.S. Attorney for the Eastern District of Virginia, at a Jan. 25 Student Legal Forum lecture.
“From my perspective as a prosecutor, these are key tools of our trade for combating terrorism and violent crime,” he said.
McNulty, who helped prepare U.S. Attorney General nominee Alberto Gonzales for his Senate confirmation hearing, “expected some very important issues to come up...but the hearing was dominated by the torture issue.” Foremost in McNulty’s thoughts were the potential reauthorization of the Patriot Act, some parts of which will expire at the end of the year, and the fallout over United States v. Booker and United States v. Fanfan, in which the Supreme Court ruled that federal judges were improperly finding facts that raised sentences, when the Sixth Amendment only allows juries to do so. While the guidelines were not thrown out, the Court said federal sentencing guidelines could not be mandatory.
In both instances, “the outcome of the [public] debate will have a big effect on federal law enforcement and the way it operates, particularly in the fight against terrorism.”
McNulty asserted that the Patriot Act, passed overwhelmingly by Congress in October 2001 in the wake of the 9/11 attacks, offers important investigatory tools for prosecutors. In studying why the government failed to prevent 9/11, “everyone agrees that the key issue is the ‘wall’”—the separation between the intelligence community and law enforcement that that Act was designed to breach.
Before the Patriot Act, a prosecutor on a team investigating Osama bin Laden following the first World Trade Center bombing noted that he could interview almost anyone—except FBI agents assigned to a parallel investigation. The Patriot Act broke down the wall by authorizing the sharing of grand jury testimony and wire tapping with the intelligence community, who are better equipped to realize its significance.
The Patriot Act also modified rules established by the Foreign Intelligence Surveillance Act (FISA), passed in the late 1970s. FISA allowed for secret intercepts or searches with the approval of a FISA court and other high-ranking officials such as the attorney general. Previously, FISA information could not be shared with a criminal investigation, and FISA searches were only granted if intelligence gathering was the primary reason for the search. The Patriot Act required that intelligence be only a “significant” reason for such searches. “It really opened up the FISA process for law enforcement purposes,” McNulty said. These provisions will expire this year if not renewed by Congress.
McNulty noted there were other provisions of the Patriot Act that were less controversial but crucial to investigators, such as the clause that shields Internet service providers (ISPs) from civil lawsuits for providing information in criminal investigations. McNulty noted that one kidnapped woman who had communicated with her attacker online was located with information given by the ISP.
More controversial is the Act’s authorization of searches that do not require investigators to immediately notify the subject of the search, known as the “sneak-and-peek” provision. Such searches have long been allowed in drug cases, and authorities must eventually notify the subjects of searches. McNulty said the provision, which requires a federal judge to approve the search, is necessary where secrecy is needed.
“If in a terrorism investigation a person has a bomb not located on the premises…and at this point does not know that law enforcement is on to him, and a search of his residence occurs and he now discovers that law enforcement officials have discovered him, he could leave the place where the search is occurring and detonate the bomb that’s set to go off somewhere else. The ability to go in to do the search, come out and not notify the individual immediately would allow, perhaps, lives to be saved in that circumstance,” he explained. The delayed notification provision will not sunset this year, although congressmen have considered modifying its terms.
Many have criticized the Patriot Act’s allowance for obtaining records, including library records. McNulty’s office has always had broad authority to seize records through a grand jury, but the Patriot Act allows him to go through a FISA court in cases where secrecy may be necessary. McNulty said the provision, which restricts the disclosure of information learned from the search, has not been used, and will sunset at the end of the year if not renewed.
McNulty cautioned that suspects do use the library to seek information, pointing to the case of Brian Patrick Regan, a spy who worked at the National Reconnaissance Office and was arrested in August 2001. Regan would stop at a Falls Church, Va., library on his way home from work and research information on foreign embassies he could sell secrets to. Because he didn’t sign off from the computer after he left, an investigator was legally able to look at the computer and see what Web sites he had browsed.
McNulty also praised the roving wiretap provision of the Act, which allows law enforcement to intercept against a person rather than a particular phone, after showing a judge that a suspect is thwarting an investigation by switching phones. “Being able to move with the subject rather than go to court every time they get a new device is very helpful,” he said.
Turning his attention to sentencing guidelines, McNulty noted that prior to 1984, judges could sentence anywhere up to the statutory maximum for a crime, and only some crimes had minimum mandatory sentences. As a result, “there was a long debate for years that sentencing disparity is out of control,” he said. Bipartisan solutions were offered by such unlikely allies as senators Ted Kennedy and Strom Thurmond. In 1984 Congress created the U.S. Sentencing Commission, which established federal sentencing guidelines that came into effect in 1987 and were used until two weeks ago, when the Supreme Court ruling was announced. The guidelines only allowed one year to 18 months leeway from the minimum to maximum sentences.
McNulty said the ruling will make it difficult to convince defendants to plea bargain, because they may think they’ll get a better deal from a judge. Furthermore, judges might deliver widely varying punishments for federal crimes across the country. The guidelines offered predictability because defendants would know what sentences they could expect, and their willingness to plea bargain saved resources in U.S. attorneys’ offices, he said.
Drug cases in particular depend on individuals on the inside of an operation confessing and ratting out other suspects.
“If the bad guys believe that they’re better off going to a judge to get sentenced rather than agreeing with the government to cooperate—getting certain benefits for that under the sentencing guidelines as they have in the past—then our ability to get cooperation is going to go down substantially,” he said. He suggested that some federal judges who think gun cases belong in state courts might deliver shorter sentences to make their point.
To demonstrate how making the guidelines voluntary could distort sentencing, McNulty gave the example of a defendant who defrauds a bank facing six months in prison. Under the federal guidelines, if the fraud involves more than $100,000, the defendant would face a sentence up to 24 months. The amount of money used to be treated as a sentencing factor and would be found as a fact at a sentencing hearing. Now, such sentencing factors must be proven at trial. In theory, with no mandatory guidelines the same fraud case now could get the statutory maximum, which could be 30 years, or the judge could just decide on probation.
“Congress may react to [the Supreme Court ruling] by passing legislation that addresses the Sixth Amendment problem and still requires mandatory adherence to the guidelines,” McNulty said. Whether or not Congress will react “will probably be the result of how judges begin to act with this new flexibility.” He said that in the 20 to 25 sentences handed down in his district since the decision, judges have stayed within the federal guidelines, except in one drug case in which a judge gave a shorter sentence. He doubted that sentences would remain so consistent in other districts, however.
McNulty suggested that the most feasible way to fix sentencing guidelines and make them mandatory may be for Congress to use what has been called the “Bowman fix,” after its creator, Indiana University law professor Frank Bowman. The fix changes the maximum guideline range to the statutory maximum, and the court could decide only what the low end would be. While critics denounce the idea of potentially even tougher sentences, McNulty said judges in the past rarely increased sentences from the guideline maximum, and would likely stay within the maximum of the old guidelines rather than approach the higher statutory maximum.
If Congress steps in, punishment guidelines may be re-examined, and issues such as sentencing differences between possession of crack and cocaine, and rehabilitation versus prison time could be mulled over.
“We’re going to see, I think, a wider debate about punishment
as a result.”