Defendants could benefit from new federal sentencing guidelines

WHEN EARLE McNEILL was sentenced in April to 7 1/2 years in a federal prison for his role in a health-care fraud linked to the death of a 14-year-old girl with cerebral palsy, attorneys for defendants in the case who had not yet been sentenced were surprised by the length of the sentence.

After all, McNeill, a psychologist, was 72 (fewer than 10 percent of federal inmates are over 50), suffered from prostate cancer, had no criminal history and had been considered among the least culpable of the company's senior managers who were defendants in the case. (He had pleaded guilty in January to a single count of wire fraud.)

McNeill was executive director (but not responsible for day-to-day operations) of a now-defunct nonprofit company, MultiEthnic Behavioral Health Inc., that was hired by the city in 2000 to provide at-home social services to about 500 at-risk families. Authorities said the company's social workers didn't make all the required visits and then falsified records submitted to the city.

U.S. District Judge Stewart Dalzell said at sentencing that he had weighed McNeill's age and medical condition, but only in not giving him an above-guidelines sentence. (The guideline range was 87 to 108 months.)

Current sentencing guidelines say that the age and medical condition of a defendant are "not ordinarily relevant" factors when deciding whether leniency is warranted at sentencing, but they soon could be.

After Nov. 1, these kinds of personal characteristics "may be relevant" provided they are "present to an unusual degree" under new guidelines recently adopted by the U.S. Sentencing Commission, if Congress doesn't disapprove them.

McNeill is appealing his sentence. Asked if he thought the new guidelines pertaining to offender characteristics might have applied in McNeill's case, McNeill's attorney, Jeffrey M. Miller, said: "I don't think there's any question about it."

Miller said the new guidelines would make it easier for federal judges to consider a criminal defendant's age, mental and emotional condition, physical condition or military service in determining sentences because they now will carry "more weight" than at present. (Judges are required by law to consider the history and personal characteristics of an offender, but it is not within the purview of the guidelines.)

And the new rules also permit judges to send certain nonviolent drug offenders to drug- or alcohol-abuse treatment centers instead of prison.

All judges use the guidelines as the starting point in calculating sentences, and many typically sentence defendants within the guidelines - which often means prison time - unless prosecutors request leniency on behalf of cooperating witnesses. (In 2009, for example, 54 percent of defendants eligible for a nonprison sentence in the Eastern District of Pennsylvania were sent to prison anyway.)

Commission chairman William K. Sessions III said that nationally there was "a great need for alternatives to incarceration," based on feedback the commission received.

If Congress approves them, the new guidelines are likely to mean that some white-collar defendants now sent to prison may receive nonprison sentences.

The new guidelines could double the number of offenders eligible for probation, said Jonathan Wroblewski, director of the Department of Justice's Office of Policy and Legislation, in a written submission to the commission prior to its adoption of the new guidelines.

A Justice Department spokeswoman said the department had no further comment on the new guidelines.

Sessions said the proposed changes would help to lower recidivism, save taxpayers money and protect the public.

For example, taxpayers now pay an average of $27,252 per year to house an inmate in federal prison as opposed to $3,808 to supervise a defendant sentenced to probation.

Wroblewski said that federal prosecutors were "extremely cautious" about revisions to the guidelines related to offender characteristics, adding that the changes could "exacerbate" unwarranted sentencing disparities and create a "new level of uncertainty and unpredictability" in sentencing.

Other observers suggested that some of the proposed new guidelines may make sentencing fairer.

"It's good news because the commission seems to be looking more at the individual characteristics of the defendant," said Leigh M. Skipper, the chief federal defender in Philadelphia. "It's a shift in focus."

Douglas Berman, a law professor at Ohio State University who writes a blog, "Sentencing Law and Policy," said the proposed changes are symbolically important.

He called them the "first set of changes" to federal sentencing guidelines since a landmark U.S. Supreme Court decision in 2005 made sentencing guidelines advisory and not mandatory.

Berman said the "vast majority" of guideline changes until now have called for increases in sentence length.

He said it was "very unlikely" that Congress would reject the changes. The big question, he said, is whether sentencing judges will start sentencing defendants under the new guidelines while they are under congressional review.

Several federal judges contacted for comment about the proposed new guidelines did not respond.