Federal judges freed from sentencing rules

Both were powerful state senators. Both were found guilty of fraud. And both submitted reams of letters from supporters who hailed their good deeds as public servants.

Pennsylvania's Vincent J. Fumo, convicted of all 137 counts against him, will soon head off to prison for 41/2 years. New Jersey's Wayne Bryant, who was found guilty of 12 charges, was sentenced Friday to four years behind bars.

While prosecutors had sought longer sentences for both politicians, the cases highlight a kind of back-to-the-future event in the criminal-justice system: the return of discretion in federal sentencing since the U.S. Supreme Court ruled that once-mandatory guidelines are merely advisory.

"We're certainly back to much more subjective and idiosyncratic and discretionary sentencing," said Edward Ohlbaum, a law professor at Temple University who said the prosecutors' expected appeal of Fumo's sentence may well open the next chapter in the debate about how to punish corrupt politicians.

The high court's decision in 2005 that the guidelines are merely guidelines gutted about two decades of federal policy that aimed to achieve greater uniformity and eliminate disparity in sentencings.

Mark E. Cedrone, a veteran white-collar defense lawyer in Philadelphia, said the reversal was a good thing because it untethered judges from rigid guidelines, which assign points for a range of factors - including criminal history, acceptance of responsibility, and the amount of financial loss of the crime - to help calculate a sentence.

"We're back to the future with some suggestive parameters, which is really where we . . . should be," he said. "You really do need individualized sentencing."

The question has turned, Ohlbaum said, to "how much discretion a judge has, and how severely a judge may depart from those guidelines, and what, if anything, a judge will need to explain."

In the annals of corruption, one thing is clear: There will be no shortage of cases to test such questions.

Just last week, a fascinating FBI investigation of money laundering and political corruption in New Jersey came to light with the arrest of 44 people, including two assemblymen, three mayors, and a slew of municipal officials.

Ed Kahrer, who heads the FBI's white-collar and public-corruption investigation division, called New Jersey one of the most corruption-plagued states, and said corruption was "a cancer that is destroying the core values of this state."

But when it comes to the final word in corruption cases, sentences seem to vary widely across the nation.

"They're all over the map," said Peter J. Henning, a law professor at Wayne State University in Detroit, who said Fumo's sentence "is low by any current standard," because of the amount of the fraud and because Fumo opted for a trial.

In May, for example, a former New York assemblyman was sentenced to 10 years in prison after pleading guilty to racketeering charges that he skimmed $2.2 million from various sources, including a political campaign committee, union accounts meant to provide benefits for members, and even contributions to a Little League baseball program.

And the judge said he would have imposed a 15-year term if the defendant hadn't cooperated with prosecutors.

Henning cited the case of former U.S. Rep. Randy "Duke" Cunningham, a Republican from California who ended up in 2006 with a sentence of eight years and four months after pleading guilty in a corruption case.

Former New Jersey Sen. Sharpe James, a former mayor of Newark, was sentenced in 2008 to 27 months behind bars by a judge who rejected the prosecution's request for up to 20 years in prison.

Edwin Stier, a former federal and state prosecutor in New Jersey, said the variations occur because a judge "is going to look at the whole person" and may not see a typical defendant when looking down from the bench at a public official.

Unlike drug dealers and mobsters, he said, politicians can better portray themselves as mostly upstanding public servants who have strayed - and then get prominent folks to write letters of support.

"All of that comes pouring across the judge's desk," said Stier, "and the judge has to sort through it and balance the record of the individual for his good works and public service against the extent to which he's engaged in corrupt acts."

That is what happened in the cases of Fumo and Bryant: a deluge of letters, many from prominent people.

The letters to U.S. District Judge Freda L. Wolfson have not been made public. In Fumo's case, Gov. Rendell wrote to U.S. District Judge Ronald L. Buckwalter, and so did many other prominent officials and lawyers.

A presentence report in the Fumo case concluded that 21 to 27 years could be imposed under the guidelines. Buckwalter later cut that down to 11 to 14 years, and at sentencing he went down even further, prompting public outrage at the 55-month term.

Before announcing that sentence, Buckwalter said he had reviewed more than 250 letters and concluded that Fumo had done an "exceptional" job as a legislator. He also said he was glad the guidelines were no longer mandatory.

Fumo was convicted on charges of illegally extracting $4 million in benefits from the state Senate and a pair of nonprofits, and of obstructing justice.

Stephanos Bibas, a law professor at the University of Pennsylvania, said he was "surprised and disappointed" by the Fumo sentence, "as I think a lot of people were."

Bibas said that once the public learned of the long term that could be imposed under the guidelines, the expectation was that Fumo would get a tough sentence.

So when Fumo ended up with less than half the 11-year minimum, Bibas said, it appeared that he was getting a "series of discounts" that wouldn't be available to the typical defendant.

"The message that comes out [is that] prison is really for those young, dangerous black kids that commit street crime," he said.

Bibas said another message came through, too: "a culture of corruption in Philadelphia that seems to be getting another pass."

Prosecutors said Bryant had solicited a job at the University of Medicine and Dentistry of New Jersey but had done little work, showing up once a week and spending his time there reading the paper and talking on the phone.

They contended that the guidelines suggested eight to 10 years; Wolfson said they were more in the range of five years and 10 months to seven years and three months.

In going slightly lower for the sentence, Wolfson said, she was "weighing the virtues" of a man who had done much good against actions that "were corrupt and undermined the faith and trust of the public in public officials."

She went on to say people in public service must never abuse the trust of the citizenry - and then announced the four-year term.

Prosecutors said they considered it a fair sentence.

Defense lawyer Cedrone said prosecutors, used to getting longer sentences that came with the guidelines, were finding they were not so easy to get anymore.

"The government now gets to feel what it's like to be on the end of what they perceive to be unjust sentences," he said. "Now they know."