Defending a sentence: the judicial establishment of sentencing entrapment and sentencing manipulation defenses.

• Author: Malmud, Joan

Introduction

As drug dealers, Stephanie and Keith Anthony Cannon needed to protect their business.(1) They needed guns and turned to Sherbrooke, a man with a ready supply.(2) The Cannons did not know that Sherbrooke was also an undercover police officer.(3) The Cannons met Sherbrooke four times. During the first three meetings the Cannons bought five handguns from Sherbrooke and stated that they wished to buy more.(4) At the fourth meeting, Sherbrooke introduced the Cannons to a man named Keating who--unbeknownst to the Cannons--was also an undercover agent.(5) The Cannons expected to sell cocaine to Keating and Sherbrooke and to purchase handguns from them.(6) Keating and Sherbrooke, however, planned to arrest the Cannons. Although the Cannons had never requested a machine gun, Keating brought one along to the meeting.(7) "After additional conversation, and some salesmanship by [Sherbrooke] and [Keating], [the Cannons] also purchased one of the machine guns. The guns were not loaded and no ammunition was included in the sale."(8) The Cannons left the meeting and were immediately arrested.

Things got worse for the defendants. A federal statute "imposes a mandatory five year sentence for the use of a firearm, but increases the term to thirty years if the firearm is a machine gun."(9) Thus, because Keating had the foresight to bring a machine gun, the Cannons, who had held "an unloaded machine gun in [their] possession . . . for a matter of moments," faced an additional twenty-five years in prison.(10)

The district court refused to sentence the defendants to an extra twenty-five years in prison. The court noted that "[t]here was no legitimate law enforcement purpose served" by selling the machine gun.(11) "The decision to arrest had been made prior to the meeting, and the presence of the machineguns [sic] could not make the defendants any more guilty of the offense than they would have been if only handguns had been . . . purchased."(12) Because "the machineguns [sic] were nothing more than a gratuitous experiment" to increase the defendants' sentence by six-fold, the court held that the officers' conduct constituted sentencing manipulation, and as a result excluded the machine gun from consideration at sentencing.(13)

The Cannons' case is one among many. Under the recently adopted Federal Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines"), crimes are quantified based upon the amount of harm caused.(14) In the Cannons' case, the guns were quantified. A firearm was worth five years, a machine gun twenty-five more. The Sentencing Guidelines rarely account for individual and extenuating circumstances. Thus, the fact that the Cannons may not have been predisposed to purchase the machine guns or the fact that the undercover agents might have encouraged them to purchase the machine guns was irrelevant to their sentences. As a consequence, undercover agents such as Keating and Sherbrooke can structure their stings and busts to maximize sentences. Some courts have responded, as the Cannon district court did, by adopting sentencing manipulation or sentencing entrapment as defenses to the sentences that would otherwise be imposed by the Sentencing Guidelines.

This Comment inquires into the authority of a federal court to adopt new sentencing defenses. Part I explains the desirability of sentencing entrapment and sentencing manipulation as defenses against sentences that would otherwise be imposed by the Sentencing Guidelines. Both sentencing entrapment and sentencing manipulation defenses would mitigate the harsh consequences of the Sentencing Guidelines, counter improper police conduct, and tailor sentences to fit a defendant's culpability.

The desirability of a defense, however, does not necessarily give a court the authority to adopt it. Part II defines sentencing entrapment and sentencing manipulation. Because these defenses are still in their formative years, no single definition for either defense has emerged. For purposes of this Comment, a careful definition of each defense is important because whether a court has the authority to establish a defense depends on what the defense purports to do. Part III considers the possible legal foundations of the sentencing entrapment and sentencing manipulation defenses. This Comment concludes that a court would be overstepping its authority if it adopted either the sentencing entrapment or sentencing manipulation defenses. Yet, the problems of police misconduct and sentences unrelated to culpability remain. Thus, Part IV considers which branch, if not the judicial branch, could best formulate a remedy.

1. Development Of Sentencing Defenses: The Federal Sentencing Guidelines And Problems Therein

   1. Sentencing Before 1984: The Height of Judicial Discretion

      Sentencing entrapment and sentencing manipulation would not exist were it not for recent changes in the way federal courts sentence criminals. Prior to 1984, judges possessed extraordinary discretion in sentencing defendants.(15) While Congress set maximum sentences, a judge could impose a sentence anywhere up to that maximum.(16) A judge did not have to write an opinion explaining how she arrived at a particular sentence.(17) Nor were sentences generally appealable.(18) Because judges had few guidelines beyond their own discretion, "disparity in sentencing was the norm."(19) As similarly situated defendants received widely disparate sentences, criticism of the sentencing system increased.(20)

   2. Reform and the Sentencing Guidelines: Quantity-Driven Punishment

      In 1984, in response to the criticisms, Congress enacted the Sentencing Reform Act.(21) The Sentencing Reform Act created the United States Sentencing Commission ("Commission") as an agency within the judiciary.(22) Over the next three years, the Commission developed the Sentencing Guidelines, which went into effect in 1987.(23)

      Through the Sentencing Guidelines, the Commission sought to achieve uniformity in sentencing.(24) "Uniformity in sentencing" means that similar criminals, committing similar crimes, will receive substantially similar sentences.(25) To achieve uniformity, the Commission established a 258-box grid. Along one axis of the grid lies the severity of the offense. To the extent possible, the Commission quantified the severity of an offense.(26) For example, in the case of drug crimes the severity of the offense is based on the amount of drugs a defendant has bought, sold or possessed.(27) In economic crimes such as fraud, money laundering, bribery or counterfeiting, the severity of an offense is determined by the amount of money involved in the illicit transaction.(28) Additionally, a criminal's sentence might be stepped up due to an aggravating factor such as the presence of a gun,(29) the transaction's proximity to a school,(30) or the involvement of a pregnant woman in the transaction.(31)

      Along the other axis of the grid lie the offender's characteristics. The Guidelines limit the personal characteristics a judge may consider. Initially, Congress indicated that a judge could consider a "defendant's age, education, vocational skills, mental and emotional condition, physical condition (including drug dependence), previous employment record, family ties and responsibilities, community ties, role in the offense, criminal history, and dependence upon criminal activity for a livelihood."(32) Additionally, a judge was supposed to consider the defendant's state of mind as well as her purpose in committing the crime.(33) By the time the Commission submitted its proposed Sentencing Guidelines to Congress, only three factors were deemed relevant to setting a sentencing range: (1) a defendant's past criminal history; (2) her dependence upon the criminal activity for her livelihood; and (3) her acceptance of responsibility for the crime.(34) In 1989, the requirement that judges consider a defendant's motives was deleted as "unnecessary."(35) In this way, the focus of the Sentencing Guidelines shifted from considering the defendant to considering only the amount of harm caused.(36)

      A judge follows the grid--plotting the severity of the offense against the offender's characteristics--to the appropriate sentencing range and imposes a sentence within that range.(37) The range is narrow. Before the Sentencing Guidelines were enacted, judges were able to choose a sentence anywhere within a range of zero to twenty-five years.(38) Under the Sentencing Guidelines the maximum possible sentence cannot exceed the minimum by more than twenty-five percent or six months, whichever is greater.(39)

      Ostensibly, judges are allowed to depart from the grid if they find that the case at bar presents unusual circumstances.(40) In practice, however, departures are rare. The Sentencing Guidelines limit departures only to "`circumstance[s] of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.'"(41) and state "that despite the courts' legal freedom to depart from the guidelines, they will not do so very often."(42) As one court noted, "[f]ew fact situations [we]re not foreseen by the Commission."(43) Furthermore, since the promulgation of the Sentencing Guidelines, appellate courts have regularly overturned so-called "downward departures" (the application of a lesser sentence than the Guidelines would otherwise require),(44) further dissuading district courts from straying.(45)

      By quantifying the severity of most offenses, restricting the individual characteristics a court may consider, and limiting the ability to depart from the grid, the Sentencing Guidelines aimed to impose substantially similar sentences on criminals committing similar offenses.

   3. Quantity-Driven Punishment and the Creation of New Problems

      The attempt--through the Sentencing Guidelines--to eliminate the disparities under the old sentencing system, however, gave rise to new problems and criticisms.(46)

      1. Sentences...