Federal judges in Seattle region hand out lighter sentences
By PAUL SHUKOVSKY
paulshukovsky@seattlepi.com.
P-I REPORTER
seattlepi.nwsource.com

Crack cocaine dealer Mario Nash's mother was a 16-year-old prostitute, his father a predatory pimp. His crack-smoking grandmother raised him and exposed the little boy to a deluge of dope and domestic violence. At the tender age of 9, Mario had his first arrest -- armed robbery and assault.
At 24, Nash stood before Chief U.S. District Judge Robert Lasnik in a Seattle courtroom 11 days ago for sentencing on a weapons and a drug charge. The young man could easily have been sentenced to meet middle age behind bars. Instead, he'll be out in eight years.

Nash had the good fortune of being sentenced in Seattle.

Federal judges in Western Washington give lighter sentences than guidelines call for at 10 times the national rate. About one in five defendants get a break. Only Arizona exceeded Seattle's record, and that is likely a statistical aberration explained by the handling of deportations of illegal aliens.The average defendant convicted of a crack cocaine offense nationally in 2006 got just over 10 years in prison, according to U.S. Sentencing Commission statistics. In Seattle, crack defendants got an average of seven years.

On Monday, the U.S. Supreme Court issued a ruling that reflected what is going on in Seattle's federal courts. The court reaffirmed its 2005 ruling in a case called Booker that gave judges more sentencing discretion by making sentencing guidelines voluntary.

When Lasnik sentenced Nash on Nov. 30, he used that discretion by taking into account the extreme abuse he suffered.

"There's virtually no other place in the United States where Mr. Nash would be looking at anything less than a 20-year prison sentence from the government," Lasnik said from the bench. "And there's no other U.S. Attorney's Office that would give him even as much of a break as what this U.S. Attorney's Office has done. They could have added charges in such a way that he would have faced mandatory punishments of 15 to 20 years imprisonment, and they chose not to do so."

A plea deal that Assistant U.S. Attorney Vincent Lombardi cut with Nash's lawyer, Michele Shaw, significantly reduced the prison time he faced.

That prosecutors gave Nash a break reflects a larger trend in Seattle that appears to defy a Bush administration fiat that U.S. attorneys "must charge and pursue the most serious readily provable offenses." It's a phrase from a 2005 memo issued by then-Deputy Attorney General James Comey just days after the Booker decision gave judges more sentencing discretion.

Despite the Supreme Court ruling, Comey told prosecutors: "We must take all steps necessary to ensure adherence to the sentencing guidelines."

But the Bush administration's struggle to maintain control of sentencing has run headlong into the realities of Seattle.

Not long after Seattle U.S. Attorney John McKay, along with seven prosecutors across the country, was sacked for what appeared to be political reasons, there was a groundswell of indignation and Congress held hearings. Internal Justice Department e-mails released two weeks ago by the House Judiciary Committee slam the Seattle U.S. Attorney's Office on the sentencing issue and intimate that sentences could be used to justify McKay's firing.

A March 6 e-mail from Michael Elston, then-chief of staff to the deputy attorney general, notes the Justice Department's intent to follow sentencing guidelines and says: "Since January 2005, the United States Attorney's Office in Seattle has compiled one of the worst sentencing records in the country."

Both McKay and his successor, Jeff Sullivan, reject that characterization. Both say no one, including from the Department of Justice, ever complained about the office's sentencing record.




"I will compare my record and John McKay's record with any U.S. Attorney's Office in the country," Sullivan said. "All U.S. attorneys have wide discretion as to how they handle cases. Length of sentence is only one criterion in how you evaluate an office. But it isn't the only one and shouldn't be the primary one."

McKay joked about the memo saying: "Makes you wonder why I didn't get fired sooner."

McKay said that he was always aware that sentences in Western Washington were often lower than the guideline range and talked continually with prosecutors about that issue.

"There was no dissent among a very diverse group of people about whether or not we were doing something culturally wrong, institutionally wrong, or not following Justice Department guidelines," said McKay.

"We believe we had independence," McKay said. "If we just became machines for putting people in prison, then we wouldn't be doing our job."

Sullivan said the downward departure in sentences in Seattle does not reflect that his office handles a very large number of drug cases.

"We are in the top four or five offices in the country in terms of the number of people indicted for drug offenses," he said.

Sullivan said that in big drug-conspiracy cases, "we routinely charge everybody involved," including low-level players who are allowed to plead to lesser crimes instead of being locked up for 20 years. Prosecutors around the country frequently charge only the top three or four culprits, he said.

Ohio State University Law Professor Douglas Berman, a nationally recognized scholar on criminal sentencing, said that a high caseload always drives sentences lower.

"If every defendant tried to contest guilt at trial, the whole system would come to an absolute halt," Berman said.

Federal prosecutors in Seattle seek plea bargains to ensure that trials don't become a bottleneck in the criminal justice system that prevents them from getting as many criminals off the street as possible.

Seattle Federal Public Defender Tom Hillier called the sentencing record in Seattle the "best" in the country and said it's partially because prosecutors haven't given in to Bush administration pressure.

"We have never been a district wed to the 'them versus us' practice of law," said Hillier, who started working at the Federal Public Defender's Office 25 years ago. "It's the history. It's the culture. It's always the way it has been. And it doesn't go away because of a rogue (Bush) administration that wants things done differently."

That's not to say that prosecutors are pushovers.

Michele Shaw, Nash's defense attorney in the drugs and weapons case, said Lombardi, the prosecutor, made it clear to her that if her client didn't plead guilty, he would structure the charges so the judge had no choice but to sentence him to a much longer prison term. Nash took the deal, and that gave Lasnik more leeway at sentencing. The judge apparently appreciated it.

"This (U.S. Attorney's) office is not wedded to the idea that you charge the maximum in every case," Lasnik said in an interview. "I think they recognize that crime categories are so broad that they will sweep people into very long sentences -- people that are not the drug kingpins that the Congress had in mind" when it passed drug laws.

"A lot of places charge them with the max. Throw away the key. Let them rot in prison for 25 years."

Prosecutors build the trust of judges by being temperate, reasonable and fair on the routine cases. That makes it more likely that judges will give them leeway on the cases that are more important, Berman said.

The Seattle office has blazed new legal ground in areas such as Internet crime, using health-care privacy laws for prosecutions and in pursuing American sexual predators traveling overseas to have sex with children.

Berman said that prosecutors here have to be realistic.

"You could take a tough-as-nails federal prosecutor from Texas, transfer him to Seattle and he's going to have to become a softy or at least soften the edges because of the institutional realities he faces," Berman said.