Judge resists label as toughest in Nevada

A former mortgage broker faced Senior U.S. District Judge Roger Hunt in March and received a 25-year prison term for orchestrating a massive fraud scheme in Las Vegas.

After the hearing, a federal prosecutor boasted that the penalty represented the longest sentence a mortgage fraud defendant had received in Nevada, and possibly in the country.

New statistics show that Hunt may be the toughest federal judge in Nevada when it comes to punishing criminals. Data compiled earlier this year by a New York-based research organization resulted in the first judge-by-judge review of federal sentences and showed that Hunt imposed the highest median sentence, 36 months, of 10 U.S. district judges in Nevada over a recent five-year period. Hunt sentenced 326 defendants during that period, from fiscal 2007 through fiscal 2011.

"The fact that one judge's median may be higher than another judge's median does not necessarily mean that judge is a harsher sentencer," Hunt said recently.

The data was collected by the Transactional Records Access Clearinghouse at Syracuse University. The median sentence was calculated by ordering sentences from lowest to highest, and selecting the middle sentence from the list.

A report from the research center, which was established in 1989, used the data to examine sentencing variations within federal judicial districts across the country. It did not reveal large sentencing disparities in the district of Nevada, where federal judges most often impose sentences on deported immigrants who have illegally re-entered the country.

Hunt, who called sentencing an "individualized activity," said he does not consider himself a harsh sentencer. Yet he was not surprised that he had the highest median sentence, given the cases he has been assigned.

"I think it's just luck of the draw," the judge said.

Hunt said the majority of the sentences he imposes fall within the federal sentencing guidelines, which were adopted in 1987 to help alleviate disparities. Because of a 2005 U.S. Supreme Court decision, the guidelines are now considered advisory, rather than mandatory.

"I don't believe I have departed above the guideline range," Hunt said. "I've gone below with some frequency."

The mortgage fraud sentencing he handled in March was not part of the data compiled by the clearinghouse, but it illustrates how factors beyond a judge's control can influence a defendant's punishment. It also demonstrates how a judge can impose a seemingly severe sentence while at the same time showing some mercy.

In that case, banks lost more than $52 million. The sentencing guidelines, which consider both the seriousness of the offense and the defendant's criminal history, called for defendant Steven Grimm to receive a life sentence.

But Hunt, who described Grimm as the architect of the scheme, said the enormous loss amount in the case had unfairly skewed the calculation, causing the 49-year-old defendant to face the same sentence received by one of the Oklahoma City bombers.

So the record-setting penalty in the case was actually lower than Hunt could have imposed under the guidelines, and lower than the 30-year term sought by prosecutors.

"Sentencing is the hardest thing I do, just because you're dealing with people's lives," Hunt said.

Data for Nevada showed that the overall median sentence was 28 months during the five-year period analyzed. Three Reno-based judges tied for the lowest median sentence, which was 24 months. They were Larry Hicks; Edward Reed Jr., a senior judge; and Brian Sandoval, who stepped down in September 2009 to run for governor.

The sentencing guidelines abolished parole. With credit for good behavior, criminals can expect to serve about 85 percent of their prison terms.

RESISTING COMPARISONS

The Transactional Records Access Clearinghouse, a nonpartisan organization, conducted an analysis of all criminal cases completed in the federal courts from fiscal 2007 through fiscal 2011 and found "extensive and hard-to-explain variations" in the sentencing practices of judges working in many federal districts.

It based this finding on the first-ever review of the sentences imposed by 885 judges in more than 370,000 cases. Judges who had not sentenced at least 50 defendants during the five-year period were excluded. The data did not show wide variations among Nevada's judges.

The research organization also developed an interactive tool that allows subscribers to examine the record of individual judges. The Las Vegas Review-Journal used this tool to generate statistics for individual judges in Nevada.

According to the clearinghouse website, systematic public examination of the sentences imposed by individual judges has been resisted:

"None of the numerous reports published by the federal courts and others present comparative sentencing statistics on individual federal judges. Further, the name of the sentencing judge is always excluded in the publicly available computerized case-by-case files on federal sentences produced by both the Federal Judicial Center and the Sentencing Commission."

The clearinghouse obtained records under the Freedom of Information Act after filing a series of lawsuits against the Justice Department and combined the records with information obtained directly from the federal courts. The project to develop the data and the interactive tool has extended over more than 15 years.

Robert "Clive" Jones, Nevada's chief U.S. district judge, said his colleagues across the country "have always zealously protected the right to discretion."

"We have always resisted efforts to compare one judge to another," he said.

Jones argued that such comparisons threaten judicial independence.

"We want the judges to be independent," he said. "We don't want Congress to dictate how they rule either in a civil case or in a criminal case."

Congress already has constricted judges by establishing mandatory minimum sentences for some crimes, such as certain drug cases or violent crimes involving the use of a gun.

Judges are not the only ones who have resisted the release of data about sentences imposed by individual judges.

The report on sentencing variations, which received coverage by major news organizations, spawned a critical response from the Sentencing Resource Counsel Project of the Federal Public and Community Defenders.

According to the response, the sentencing report "fails to compare similar cases, relies on poor quality data, uses an unreliable method of identifying case type, uses incorrect methods of reporting sentence length, and contains numerous errors."

"The errors we found, we didn't have to look hard or long for them," said Amy Baron-Evans, sentencing resource counsel, who helped prepare the response.

She called the report a "witch hunt of judges."

Baron-Evans also said she did not understand the report's purpose. Federal judges are appointed, rather than elected, because they "should be doing their jobs without fearing political consequences," she said.

Although U.S. district judges are appointed for life, Baron-Evans said, members of Congress can use their subpoena and impeachment powers to cause difficulties for judges whose views they disagree with.

She noted that in 2003, members of the House Judiciary Committee responded to the congressional testimony of a federal judge from Minnesota, who opposed a bill that would have increased sentences for low-level drug offenders, by threatening to subpoena his sentencing records and by threatening to impeach him.

Rene Valladares, federal public defender for Nevada, refused to discuss the sentencing data compiled by the clearinghouse, citing flaws found by the Sentencing Resource Counsel Project.

Susan Long, co-director of the clearinghouse, defended the organization's report.

"I've been studying the best way to both measure and assess government activities for over 40 years," she said.

Long, a statistician and professor in Syracuse University's Whitman School of Management, said huge data sets are not going to be perfect.

"Can things be improved? Absolutely," she said. "That's my life's work, but you shouldn't expect data to be perfect."

Long said the organization will continue to improve and update its data.

But she expressed concern about a statement in a fact sheet prepared by the Sentencing Resource Counsel Project. According to the statement, certain comparisons conducted by the clearinghouse "illustrate how misunderstanding of sentencing data has the potential to undermine confidence in the criminal justice system."

Long responded by saying, "I guess in a democracy, we don't have a system that's based on blind faith in a king or anything like that. And in a democracy, it works best when the public is informed."

DISCRETION VERSUS EQUAL JUSTICE

The report on sentencing variations, which focused on white-collar and drug crimes, reviewed practices within individual districts, "where judges presumably receive the same general mix of cases," according to a statement released by the clearinghouse. The country has 94 federal judicial districts.

Variations that were found raise questions "about the extent to which sentences in some districts are influenced by the particular judge who sentenced the defendant rather than just the facts of the case," according to the statement.

For instance, data showed that the Northern District of Illinois ranked highest on the list of sentencing differences for white-collar offenses, with eight judges imposing median penalties that ranged from zero to 39 months. That district includes Chicago.

Nevada ranked No. 44, with four judges imposing sentences for white-collar offenses that ranged from two to eight months.

To help ensure a sufficient number of cases for meaningful comparison, according to the research organization, only judges who had imposed sentences in at least 40 white-collar cases were compared. A total of 65 districts had at least two judges who met these criteria and were included in the comparisons.

Jones noted that sentences for white-collar crimes "can vary all over the map relative to the guidelines."

"There's a tremendous variance in these cases in the extent of the fraud and the culpability of the defendant for the fraud," the chief judge said.

A review of sentencing variations for drug offenses showed that the Northern District of Texas, which includes Dallas and Fort Worth, ranked highest out of 88 districts on the list of differences. In that district, eight judges imposed median sentences that ranged from 60 to 160 months.

Nevada ranked No. 64, with six judges imposing median sentences that ranged from 51 to 70 months.

Jones, who is based in Reno, said he was not surprised that research suggests federal judges in Nevada impose relatively similar sentences for similar crimes. He said he expected them "to be middle of the road."

INTERPRETING NEVADA DATA

Nevada judges interviewed for this story expressed curiosity about the sentencing data compiled by the clearinghouse, but they had different opinions about its usefulness.

"I've never seen anything like this before," Judge James Mahan said. "This is fun."

Mahan said he would want to know if his numbers were vastly different from those of his colleagues.

"Anything that can keep us informed about our performance I think is good," he said.

Mahan joined Jones and Senior Judge Howard McKibben with a median sentence of 30 months, slightly above the state's median of 28 months.

"I'm somewhere in the middle," Mahan said. "I'm satisfied with that, I think."

The judge said making such information public also can help people understand how the justice system works.

Mahan said he would like to do away with mandatory minimum sentences because they interfere with judicial discretion.

"I just don't think you can say 'here's one-size-fits-all,' and the mandatory minimums tend to do that," the judge said.

He also said prosecutors and members of law enforcement can use them to manipulate sentences. For instance, law enforcement officers can wait to make an arrest in a drug case until enough drugs have been sold to qualify it for a mandatory minimum. And prosecutors decide which charges to file against suspects.

"When the rules are mandatory, prosecutors drive the bus," said Baron-Evans of the Sentencing Resource Counsel Project.

Anne Traum, a UNLV law professor and former assistant federal public defender in Nevada, said prosecutors also affect sentencing simply by the penalty they request.

"Generally, it is just widely recognized that at sentencing a prosecutorial recommendation means a lot," she said.

In addition, prosecutors influence the outcome of cases by offering plea bargains.

Traum said the clearinghouse data reflect a certain amount of conformity among Nevada's judges, but the numbers don't explain why the judges imposed similar sentences.

Hunt said he did not find the clearinghouse reports helpful or meaningful.

"There are white-collar crimes, and there are white-collar crimes, and the statistics in my opinion are misleading because they are not complete," he said. "The information that they gather assumes equality among all the defendants and the charges. It grossly mis­characterizes what judges do when you lump all drug offenses together or all white-collar crimes together. Therefore, the data's incomplete, and in my opinion, that makes it misleading."

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710.