When it comes to abusing language, politicians are career offenders. Congress, in particular, has played an aggravating role.

Usually, empty political rhetoric is funny. Jon Stewart and others have made careers ridiculing self-serving phony poli-talk.   

In criminal law, false meanings are not funny. Legal spin is hard to fight because Congress — literally, legally and necessarily — has the authority to define words and terms. If Congress legally defines a "circle" as a "square," then the circle is squared for legal purposes — at least until, two decades later, the Supreme Court controversially resolves a circuit conflict and, by a 5-4 margin, rules circles are round.   

Federal criminal law has been severely damaged by language abuse that occurred in the 1980s at the height of drug war hysteria. Today, federal criminal law is full of sentencing labels that sound good — career offender, felon in possession of a firearm, obstructing justice — but frequently misrepresent objective reality.

Meet Lori Newhouse, 35, a mother of three who should be home with her children watching July 4th fireworks. Instead, she's in federal prison because she was falsely — but with perverse legality — labeled as a "career offender." In truth, Lori was a career telemarketer, a meth addict and a one-time minor drug offender.   

Federal judges fight back

This we know because U.S. District Judge Mark W. Bennett of the Northern District of Iowa said so in a 68-page decision that left no detail to chance. Bennett did a great service to Lori and others who've been victims of false labels.  

The term "career offender" produces more bizarrely long and unjust sentences than any other federal criminal label, except perhaps conspirator. Other "bad labels" — possession of a firearm, obstruction of justice, crime near a school — produce more numerous injustices, but they typically add perhaps one to five years to sentences while the "career criminal" label can add decades.  

Judge Bennett and other federal judges have been heroically documenting the unfairness and inaccuracy of the career offender label for more than a decade. They've been taking action on a case-by-case basis. But false language does lasting damage to the functioning of justice.

 

Recently, the Obama Justice Department — which has made praiseworthy efforts to limit the use of the career offender label — bizarrely asked the U.S. Sentencing Commission to prohibit labeled prisoners from asking judges to shorten prison terms in accordance with newly approved sentencing guidelines. The new guidelines cover sentences given after November 1, and the commission votes July 18 on whether the guidelines should cover those already in prison.

When the Justice Department made this recommendation harming thousands of non-violent drug offenders, the headlines announced the opposite, that the Justice Department favored letting low-level, non-violent drug offenders ask for sentencing reductions. Such is the power of false language to shape how the world is perceived. In fact, the Justice Department recommended only those who had avoided harsh labels be allowed to apply for adjustments — about 40% of the 51,000 inmates who could theoretically benefit.

This sounds good. The reality is quite the opposite. 

This story of the career offender label in action illustrates how Congress uses labels as political spin to claim credit for something, even if they are doing the opposite. Career criminals exist. Federal and state judges see them every day. But, as now retired federal judge Nancy Gertner wrote in 2010, "There are career offenders and there are career offenders." 

Prosecutors were trying to get a nearly 20-year sentence for a 46-year-old black man who'd sold a small amount of crack in the housing project where he'd live his entire life. The man was a low-level hand-to-mouth dealer, a drug addict with the intellectual functioning of a first grader, no history of violenceand no history of making more money than needed to support his drug habit. Gertner (pictured, left) gave him five years, the mandatory minimum sentence. 

Bad language = bad law = bad results

Why does this problem exist?

First, prosecutors control the labeling, not judges. Prosecutors can file an 851 motion on any defendant has two or more felony offenses on their record, including drug offenses. The country has millions of drug addicts who fit this description, so "career criminal" is a label that lets prosecutors that lets prosecutors — not judges — take control of sentencing.    

These career criminal motions have been used in arbitrary and, some would say, myself included, racist ways.

The Sentencing Commission reported in its 2004 that blacks made up 26% of offenders but 58% of those who got labeled as career criminals.

Geographic randomness is extreme, too. In Iowa, 80% of eligible offenders get hit with 851 motions. In Nebraska, 3% do. 

The career offender label is no more sophisticated than 1 offense + 1 offense = career criminal — if a prosecutor wants. The career offender label doesn't consider a person's role, the seriousness of the offense, how much money was involved, an indoor pot growing offense is the same as a violent crime — nothing that a normal person would want to know. A drug kingpin who doesn't get labeled will be out of prison long before the most minor offender he employed. Drug addicts don't stand a chance. 

In the real world, federal prosecutors use the career criminal label as a tool to intimidate people to plead guilty and cooperate. It's part of the game. This is understandable. But the label is so easy for prosecutors to use and the penalties so severe that a distressing number of innocent (and less guilty) defendants plead guilty to avoid decades of imprisonment. For some defendants with little to honestly testify about, lying becomes a distressing necessity.  Perverse incentives create perverse results. 

Last August, Attorney General Holder issued a memo telling prosecutors to stop filing 851 motions unless the defendant was truly a serious offender.  "Prosecutors should decline to file (851 motions) unless the defendant is involved in conduct that makes the case appropriate for severe sanctions," Holder wrote. 

It's too early to tell what effect the memo has had an effect. Regardless, it came too late for Lori Newhouse, who got labeled as something she isn't. 

The real horror of the career criminal label is what they do to sentence lengths. 

How federal technocrats produce unjust outputs

Lori Newhouse was accused of going to Wal-mart and other stores to buy small amounts of the decongestant Sudafed (Its active ingredient pseudeoephedrine is used in meth-making process) and trading it for meth, which she used herself. No money changed hands. She didn't make the meth. She was a meth addict bartering Sudafed for meth. 

Her criminal career consisted of being a 22-year-old in a Motel 6 room with others when police raided the room and found meth and psilocybin mushrooms. She pled guilty to possession with intent to deliver and was sentenced to probation for both drugs — but on two separate days. Judge Bennett theorizes the drugs were sent to the lab and the results came back on different days. Thus, Lori came to court on separate days to plead guilty.

A decade later, prosecutors did what prosecutors do: They nailed her as a "career offender" for these two offenses. Judge Bennett, once a lawyer for the Iowa Civil Liberties Union, did not like the prosecutors' decision — at all.

"Because of Newhouse's Career Offender status, her U.S. Sentencing Guideline range was enhanced from 70-87 months to a staggering and mind-numbing 262 to 327 months," he wrote.

The career offender label sends federal sentencing formulas into a fury. Lori's criminal history category was automatically increased to the maximum, Category VI (on a I to VI scale). Her offense's Base Level soared from Level 26 to Level 37 (on a scale of 1 to 38). Her mandatory minimum sentence doubled from five to ten years. Her maximum sentence increased from 40 years to life without parole. And she faced being held in a maximum security prison because the Bureau of Prisons limits the freedom of those with harsh labels.  

Congress' career offender scheme was reaching its fruition: Bennett was supposed to sentence a mother with a drug problem to hard time for 22 to 27 years, costing taxpayers more than $1 million. If he was Drug War Tough, Bennett could legally sentence Lori to die in prison for buying Sudafed to get high.  A career offender, getting what she deserved! 

The unexpected (but still inadequate) result

As you can imagine, it didn't turn out this way. Judge Bennett, 64, is no shrinking violet. To make a long story shorter, Bennett stopped the sentencing assembly and ordered the prosecutor and federal public defender to make their cases. "The operation of the Career Offender guideline here opens the completely absurd possibility that Newhouse's sentence could be greater than all five of her co-defendants combined!" he wrote. (Emphasis and exclamation point in original.)

In the 1980s and the 1990s, the U.S. Supreme Court cheered on the get-tough Congress and the ultra-powerful federal prosecutor. But, in the last decade, the U.S. Supreme Court has re-empowered federal judges. A steady series of decisions since 2005 has returned considerable sentencing control to judges, a reversal without which Lori Newhouse would be spending decades behind bars. Put simply, a federal judge protected Lori Newhouse from a runaway prosecutor. 

The prosecutor conceded that Lori didn't deserve the sentence he'd arranged for her. He recommended she get the mandatory minimum sentence of 10 years and recommended a further reduction of 20% because of her cooperation. The judge followed the prosecutor's recommendation. Lori Newhouse was sentenced to 96 months.

Had she been sentence to the 70 months at the bottom of the guideline range, minus the 20% reduction for cooperation, she would have received a 56 month sentene. The false career offender label had added more than three years to her sentence, despite the intervention of the sentencing judge. Justice was not done, athough harm was reduced. 

Lori is scheduled to be released February 7, 2021. Her children are now ages 8, 10 and 16. Three years is a lot of time for a child.   

"Newhouse is just one of thousands of 'low hanging fruit' — non-violent drug addicts captured by the War on Drugs and filling federal prisons far beyond their capacity," Bennett wrote. 

The Justice Department is fighting to maintain the illusion that Lori Newhouse and her ilk are all violent, high-level career criminals. The government wants the public to believe the labels and legends are true. 

I think we all know how to label that: Bullshit. 

 

 

 

 

 

 

 

 

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