“Don’t do the crime if you can’t do the time” is a popularized saying that’s been around for ages. “Doing Time” has constituted a deterrent for many a potential Jesse James, and rightly so. Loss of personal freedom, especially to an American, ranks right up there with a Christian’s eternal damnation.
A Christian who sins can repent and be forgiven. A felon convicted under the American criminal justice system essentially never stops “paying his debt to society”. But hey, that’s another story. What I want to talk about here is how the federal criminal justice system works, in terms of determining guilt and imposing prison sentences for the same.
I, like most people, had only the most basic idea of the mechanics of the system since, until I personally ran afoul of the law. I had little interest in it. I had assumed that the system upheld our constitutional rights, that it was administered by fair-minded, professional people, that you were presumed to be innocent until proven guilty, and that in the end, justice was usually served. (stories of crooked judges and others being “soft on crime” notwithstanding.) My assumptions have, for the most part, proven to be misconceptions.
So, how does it work? I’m going to, perforce, use my own personal experience and observations to provide a look inside the system. I’m not pleading my case, only using it as an example. The very first thing that I learned was actually how little I knew about criminal law and procedures. I found that I was extremely naïve concerning the whole process. Recognizing this, my first goal was to retain a competent attorney. I would heartly recommend this for anyone facing criminal charges brought by “the feds” (court-appointed lawyers not recommended!)
The first step in the process involves probable cause! In my case, probable cause was the result of my son’s viewing photographs published in the newspaper and on the internet, which they identified as me. They subsequently informed the authorities, who took a statement and then procured a warrant from a local circuit judge which authorized my arrest and search of my home and vehicles. One might argue that the identification of a man wearing a mask in a photo might be a bit of a stretch, but in this case it was sufficient. Both state and federal warrants were issued.
The arrest: with no warning, as I was unlocking my car on the grounds of a friend’s residence, I was shot in the foot with a “flash-bang” grenade. There was a loud explosion, and immediate pain. As I fell to one knee, I looked behind me and saw an entire 6-8 man swat team, all pointing rifles at me and yelling for me to lie down. The employment of a swat team to take into custody an unarmed 63 year old man with no prior convictions and no history of violence, shooting him in the process, might be deemed a bit excessive, but that’s exactly what happened.
Next came interrogation, which I participated in until I caught a sheriff in an outright lie. When I then refused to talk anymore without an attorney present, I was then taken to a hospital emergency room for treatment for my injured foot. The injury was duly treated and photographed and will likely be the subject of a future lawsuit.
Special Note: Adding insult to injury, so to speak, I was subsequently billed by the hospital; hundreds of dollars for being a victim, imagine that! (I, of course, didn’t pay.)
Special Note: At a later date, my lawyer received a copy of a statement from the officer who shot me. The officer claimed that I wasn’t hit by the grenade shell, but only by “debris” when he shot at the ground in front of me. Funny thing is, there was a perfectly round hole going through my leather shoe, a heavy sock, and into my foot. Plus, I was standing on a grassy area, no big rocks or debris present. Lies, lies, and more lies! Why?
Incarceration: I was arrested on a Friday morning, August 20, 2004. Following interrogation and medical treatment, I was taken to the Champaign County Jail, there to be fingerprinted, photographed, stripped, and dressed in a jail uniform. I was placed in a holding cell, alone, with a sign on the door saying “watch closely”, and held there until Monday morning. I was more or less in shock all weekend.
The following Monday morning, two FBI agents came and took me by car to Sangamon County Jail in Springfield. Once there, I was again fingerprinted, photographed, stripped, and searched and dressed in a jail uniform. (black and white stripes there.)
At Sangamon, I spent about four days with three other men in what was supposed to be a one man holding cell, one concrete bed, one commode, real pleasant. It was there that I again witnessed “police overkill”, hearing loud noises, I looked out the door window to see 5-6 correctional officers, (C.O.s) trying to get a man into a restraining wheelchair of some sort. They were trying to hold the man in a seated position while they attached restraining straps, but it wasn’t going well because the man was fighting them off vigorously, even after being shot with a taser several times. When they finally had the man about 95% restrained, and were only adjusting straps, one C.O., who was kneeling beside the wheelchair, looked around to see if anyone was watching, then hit the prisoner along side his head with his elbow. I could understand the frustration, but not the vicious act. He had a really guilty look on his face before he turned and struck.
I spent the next 2 ½ months in H block at Sangamon. During this period, I was taken to federal court several times. During my first trip there, I was again fingerprinted, and photographed.
An arraignment was held before a Federal Magistrate, my lawyer entered his appearance, and, at a detention hearing bail was denied on the basis of the prosecuting attorney’s statement that I was a “danger to my community” and a “flight risk”. Turns out this is “standard” for federal prosecutors, hence very few federal suspect ever receive bail. This was my firs indication that the concept of being deemed innocent until proven guilty might be a tad inaccurate. The only case of bail that I have subsequently heard of was that of a drug-ring “snitch” who was himself charged, but was released on his own recognizance due to his “cooperation” with the government.
So with no possibility of release, I set about trying to handle my affairs over the phone. This was expensive. Phone calls were charged at the rate of 35-50 cents per minute. Seems they take advantage of the captive audience. In short order, I lost my sons, my marriage, and virtually all my possessions. The sense of loss was almost overwhelming. I was still, supposedly, innocent.
My attorney recommended and filed a Motion to Suppress concerning evidence obtained as a result of illegal search and seizure. This motion was heard and promptly denied on November 18, 2004. I had then, been incarcerated for almost three months. I thought that that was a long time, but soon to find out that I was going to be a guest of county jails for a much, much longer period.
I had been transferred to the Christian County Jail at Taylorville, Illinois on November 5, 2004. Chronology of this experience is starting to get out of hand here, so let’s go back and show that after the detention hearing, and following grand jury appearances by my wife and son’s, I was again brought to magistrate court for purposes of indictment. The initial indictment charges one count of armed bank robbery and one count of use of a firearm, the “924c” statute.
A trial date was set for about four months hence. Within a short time, the prosecutor issued a superceding indictment charging seven armed bank robberies and seven “924c”. These charges could theoretically yield a sentence of approximately 168 years.
Several pretrial and trial dates came and went, some cancelled/postponed by the prosecutor, some by my attorney. Months went by. Finally, on June 24, 2005 a pretrial session was held in federal court, Judge Jeanne Scott presiding. (on June 24 I had been incarcerated 311 days.) A date of July 8, 2005 was set for a return to court.
On July 8, 2005 I entered a conditional guilty plea reserving, via plea agreement, the right to appeal the decision which previously denied our motion to suppress. A sentencing date was set for November 18, 2005. (Nov. 18 will be the 456 day of incarceration.)
Special Note: A statistic supplied by the United State’s Supreme Court – 97% of federal cases are resolved by plea agreement, no trial. You may note almost four months are allowed between the date a guilty plea is entered and the date sentencing takes place. The time is primarily allowed for the conduct of a pre-sentence investigation (PSI) by a federal parole officer.
The federal parole officer submits a report to the judge which follows a proscribed format detailing the offense(s), the offender, and applicable sentencing. The officer will calculate “guideline” and “statutory” penalties in accordance with federal law.
Here is where we encounter elements of the system which are virtually unknown to the average citizen. Who would know that there exists such a thing as federal sentencing guidelines? These guidelines, voted into law sometime in the 1980’s, I believe, comprise a matrix of sentences in ranges of months based on level and category. “Level” is an ascending numerical rating for a given crime. i.e. Mail fraud might be a level 6 crime and armed bank robbery a level 27 crime. “Category” rated I, II, III, etc., reflects prior offenses. Within each matrix block, reached by selecting offense level and category, there is a range of months which the judge may select from. (ranges typically span 2 to 5 years, approximately-lengthier at higher matrix blocks.)
These guidelines appear to be an earnest attempt to fairly differentiate between crimes and between criminals, and for many years it was mandatory that judges abide by them. However, no system is perfect. In 2004 the Supreme Court declared the guidelines to be flawed in some respect, and specified that they be used as “optional” only. This was sort of a watershed event in legal circles, and created quite a stir. I’m sure many appeals have been filed citing the courts’ now well-known “Booker decision”.
Other than questioning the level ratings for certain crimes (which likely no two people would ever agree on), the only flaw I detected in the guidelines was the fact that an 80 year old “first offender” would fall in the same matrix block as a 20 year old “first offender”. There would be no recognition of 60 years law-abiding citizenship. Seems unfair to me.
Before going any further, I’d like to touch on a couple of actions by the federal prosecutor which I have come to view as pure harassment tactics. First, one of the court dates at which my attorney and I were compelled to attend was set purely for the purpose of allowing the prosecutor to present charge papers on which some minor “typos” had been corrected. My lawyer doesn’t spend time in court and traveling for free, and the prosecutor knows that. He could have used the U.S. mail and saved time for himself, the judge and her minions, my attorney, Christian County transporting officers, several U.S. marshals, and myself. (Typos became an issue again at the plea change hearing, but “pencil-fixed” on the spot.) Worse than the typos, the prosecutor sent e-mail to a radio station in Canton, IL. (near my home) stating that I was being released on bail. Of course, that was not true, and only served to excite my friends and relatives. How could such a thing happen in a professional office? And why would it? Your opinion is as good as mine.
Anyway, on July 28, 2005, a young lady who was a federal probation officer came to CCSO to interview mw as part of my pre-sentence investigation (PSI). I thought that the interview went fairly well. It didn’t take much time, since I had no prior offenses to talk about. The officer spoke some about her back-ground. It seems she worked almost solely for Judge Scott, and had been associated with her when she was a circuit judge, before she elevated to the federal bench. (The judge, apparently, garnered a better job for the officer.)
On October 13, 2005, I received a copy of the officer’s PSI report. Again, this professionally-prepared document, which would carry a lot of weight in my sentencing, contained mistakes ranging from “typos” to incorrect dates to, much worse, incorrect and irrelevant information. Within a week, I met with my attorney to seek corrections in the respect.
The most devastating content of the report was the sentence recommended therein-40 years! Forty years for a 64 year old first offender for what amounted to less than 15 minutes, total, in “hit and run” operations in small banks where no one was hurt. Seems somewhat excessive, wouldn’t you agree?
Naturally, I was most interested in determining just how this recommendation was derived. Remember, there were seven counts of armed bank robbery and two counts of use of firearms, the “924c” statute.
At first I couldn’t understand why the “levels” of the seven armed bank robbery offenses varied from level 22 to level 28, because the charges all read the same. (one count was a level 28, four counts were at level 27 and two counts were at level 22.) I learned that the level 27 was the norm; the level 28 was higher due to the monetary amount reported as loss (see special note); the two level 22’s were arrived at by “backing out” five levels which was the penalty added for the “armed” part of the offense. (statute listed therein.)
Special Note: In two instances, the amount of loss reported by banks involved was $2,500-$3,000 greater than what was actually taken. Hmmm?
The different level offenses were apparently subjected to some formula which resulted in a combined level 33. A “downward departure” of 3 levels was awarded for accepting responsibility, etc., resulting in a final “guideline” level of 30. At 97-121 months for a first offender (CAT.O-I). Of course, at this point, the guidelines are “advisory” only and the judge may sentence higher or lower. However, the evidence is that judges are still staying with the guidelines, so, on the basis of guidelines only, my sentence could be as little as 8 years plus 1 month.
 However, going back to the two counts calculated at level 22; as stated earlier, this number was arrived at by omitting the 5-level penalty for “armed”. This was done to accommodate the two :  “924c” charges which carry a statutory penalty of seven years for the first offense and twenty five years for each additional offense. Plus, the statute states that these penalties cannot be served concurrently with any other sentence. Very Harsh!
So, purely on the basis of the prosecutor’s decision, a 32 year penalty is added to the guideline sentence. Hence, the 40 years! The appearance is that the prosecutor is in control of the sentencing, what, then, is the role of the judge?
In my opinion, the sentencing should be controlled by the judge, using not only the guidelines, but a little common sense. There should be a mechanism whereby someone can dampen the enthusiasm of an over-zealous, politically-motivated federal prosecutor.
The question would be; “how did the prosecutor arrive at the decision to drop five 924c charges and retain two?” Why would not “armed bank robbery” with a 5-level penalty not be sufficient, especially for a “first offender”. My position would be that it should be all one way or the other. i.e. if 924c charges are truly appropriate, leave them all in place (157 years worth!) If not, drop them all and go with the consistency of the armed bank robbery sentencing guidelines.
One would think that federal prosecutors would be amply qualified to explain and justify their decisions. Obviously, they don’t want to appear to be “soft on crime”. Conversely, it appear that they don’t want to be associated with a ridiculously harsh sentence either. Can they truly have it both ways?
Special Note: Whereas “state” prisoners end up serving less that 50% of their sentences, “federal” prisoners must serve 85%, minimum. In my case, at my age, I may well die in prison, a result of my own fallibility and prosecutors’ decision. I’ll likely find out in court on November 18, 2005.

This writing will have been worthwhile if it reaches only one citizen who changes his/her mind about risking running afoul of federal law as a result of a little better understanding of the system and penalties.
                                                       

                                                           William A. Ginglen
                                                           October 26, 2005