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Wednesday, May 2, 2012

How Fair Are Federal Sentencing Guidelines? One Skeptical District Judge Weighs in

Posted By on Wed, May 2, 2012 at 2:29 PM


In this week's feature story, "Our Military Doesn't Have a Gambling Problem," we narrate the tumultuous swan dive of decorated Army Sgt. Dreux Perkins, who returned home from a combat tour in Iraq with post traumatic stress disorder and a pathological gambling addiction. His condition prompted him to start smuggling cigarettes into the federal prison where he worked as a correctional officer.

Though Perkins is the primary focus of the story, we lead with another, similar case that played out in Canon City, Colorado, involving John Brownfield Jr., a young combat vet who, like Perkins, showed post-deployment symptoms of PTSD and got caught smuggling tobacco into the federal prison where he worked. But instead of sentencing Brownfield to a prison term, as was called for by federal sentencing guidelines, Senior U.S. District Judge John L. Kane gave him five years' probation and ordered that he undergo counseling and an alcohol treatment program. With that decision, not only did Kane buck the sentencing guidelines, he also ignored the deal (recommending a prison sentence of 366 days) that the prosecuting attorney and defense attorney brokered earlier that year.

Judge Kane's 30-page sentencing memo, which can be found here, went above and beyond the more drab, pedestrian court orders associated with sentencing hearings. Heavily researched, rich in context and chock-full of legal citations and footnotes, the memo received significant recognition after Kane filed it in December 2009. The following year Green Bag, a quarterly journal published by George Mason Law School, recognized the memo in its annual list of "Outstanding Legal Writing." (Kane's memo was honored along with three other court documents in the "Opinions for the Court" category.

In an interview with Daily RFT, Judge Kane opens up about why the Brownfield case was probably the most meaningful of his 35-year career, his qualms with the way the government treats veterans, and why he thinks some of the concepts behind federal sentencing guidelines are "bullshit."

"Too many judges follow the guidelines as they were written on Mount Sinai," says Kane, who was nominated to the federal bench by President Jimmy Carter in 1977. By ignoring the guidelines in the Brownfield case, says Kane, he simply was following the advice of the Supreme Court following its opinion in Gall v. the United States, which he cited in his memo.

"Then and especially now, we're told not to deviate from those guidelines, but [in the Brownfield case] it didn't matter to me," says the judge. "I did what I thought was the right thing. You cannot reduce human conduct to a matrix. I think the guidelines help recognize what are normative sentences, but that doesn't mean all people can fit into the same slot ... there's something Orwellian about them."

Right from the get-go in the Brownfield memo -- in his first sentence, in fact -- Kane foreshadows his call for a judicial shakeup:

"I have written this sentencing memorandum, which is more extensive than most such findings and conclusions, because this case involves issues the Sentencing Guidelines do not address regarding the criminal justice system's treatment of returning veterans who have served in Afghanistan and Iraq."

Later on in the opinion, a copy of which he sent to the U.S. Sentencing Commission, Kane wrote: "Figuratively speaking, Brownfield returned from the war, but never really came home," adding: "We are now, in a manner of speaking, charting unknown waters."

(Since the memo was filed, more research has led to a greater understanding of PTSD and the alarmingly high numbers of young combat vets who develop the disorder when they return home.)

In the Brownfield case, says Kane, the sentencing guidelines failed to address two factors: the first was Brownfield's veteran status; the second was his PTSD-like condition. Brownfield, says Kane, wasn't getting much help from his own lawyers, which prompted the judge do his own research. When he called the local VA he discovered there was a six-month waiting list for patients, including those suffering from PTSD-like symptoms. Kane called the revelation "despicable."

"How much money does it take for the federal government to take these young men and women and put them through training, equipment and travel, and put them into the field as combat personnel? And then how much do we spend on them when we've used 'em up and are through with them? The answer is, minuscule."

After going through probation and undergoing treatment, Brownfield is doing well, says Kane. His case, he adds, was probably the most important case he ever heard.

Kane strikes at the heart of his argument toward the end of the memo when he writes:

"The Sentencing Guidelines do not contemplate the fact that Brownfield has had three tours in war zones where he had direct experience with the horrors of war. It would be a grave injustice to turn a blind eye to the potential effects of multiple deployments to war zones on Brownfield's subsequent behavior."

"They ought to get rid of the entire double grid," Kane says now, suggesting the guidelines should serve as one of many sentencing factors. "To say all cats are black is bullshit," he adds. "There are different shades of gray, and that's what these guidelines don't take into consideration."

Kane takes care to note that ignoring federal guidelines should not equate with being soft on crime. One of his nicknames, he says, is "Maximum John" because of his tough stances on certain offenders that cross his path.

Kane says he's received complimentary letters from members of the legal community following his memo. But he never heard back from the Sentencing Commission. Kane suspects the members didn't appreciate his message.

We contacted the editor-in-chief of Green Bag, the publication that honored Kane's memo. George Mason Law Professor Ross Davies informed us that the details surrounding the selection process for his journal's writing honors are confidential.

For more of Kane's opiniosn on why the justice system need overhaul, check out the YouTube clip below.

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