Jim Dey: McCuskey cites frustration over sentencing guidelines in decision to retire

Jim Dey: McCuskey cites frustration over sentencing guidelines in decision to retire

Just minutes after wrapping up a sentencing hearing Wednesday, U.S. Judge Michael McCuskey reflected on the broken methamphetamine addict he had just sentenced to 10 years in prison.

"This is why I get so upset," said McCuskey.

Under normal conditions, McCuskey would have been required by law to impose a life sentence on 46-year-old Fred A. Leonard of Mattoon. Some fortuitous factors came into play that spared Leonard from spending the rest of his life behind bars and will give him another chance when he's eventually released.

But McCuskey said the "luck" that graced Leonard has not been present in many cases in the past.

"We send people to prison for life in the Central District of Illinois who have never shown any violence," said McCuskey. "This happens every week in Urbana."

Complaining that federal sentencing rules for non-violent drug offenders are too harsh and that too much sentencing authority is vested in prosecutors, McCuskey has joined a growing chorus of critics who contend mandatory minimum sentences are unjustly excessive and unaffordable for taxpayers.

They include:

— U.S. Sen. Richard Durbin of Illinois, who along with U.S. Sen. Mike Lee of Utah, is sponsoring legislation aimed at giving federal judges more discretion in sentencing non-violent offenders.

— U.S. Attorney General Eric Holder, who instructed local federal prosecutors earlier this year to be cautious about filing requests for sentencing enhancements that can boost sentences up to life in prison.

— President Barack Obama, who recently commuted the remainder of the prison terms of eight long-serving federal drug offenders who were sentenced under rules that Congress subsequently repealed.

— Iowa federal Judge Mark Bennett, who examined how often federal prosecutors seek sentencing enhancements in drug cases, showing that some federal jurisdictions regularly seek the enhancements and that others rarely or never do. Bennett noted that guidelines are meant to establish uniform sentences nationally. But he said the disparities he discovered have created a "standardless Wheel of Misfortune regime" that is "totally unacceptable and shocking."

Bennett's study showed the Central District of Illinois, which includes Urbana, seeks sentencing enhancements 79 percent of the time for eligible defendants. That ranks fifth highest among 93 U.S. attorney's offices.

— Prison reform advocates who point out that the federal prison population has grown by 500 percent over the past 25 years, the majority of inmates serving time for drug offenses. The result is overcrowded prisons and skyrocketing costs to taxpayers.

Rules irk judges

The 65-year-old McCuskey is scheduled to retire this summer, and he said one of the reasons he's going is that he's tired of sending people to prison for longer terms than they deserve. But he's not the only local federal judge disgusted by the sentencing rules. U.S. Judge Harold Baker, who is on senior status and can pick his own caseload, has for years refused to hear criminal cases because of the power federal prosecutors, not judges, have in deciding who goes to prison and for how long.

McCuskey called Leonard's case a "classic" example of what is wrong with the system.

A high school dropout and longtime methamphetamine addict, Leonard was among six people charged in connection with a Coles County meth conspiracy headed by his sister, Teena Leonard Logan.

Used by his sister to facilitate the purchase of pseudoephedrine, a key ingredient in the meth manufacturing process, Leonard also helped his sister make the drug.

His court-appointed lawyer, Baku Patel of Urbana, described Leonard as "homeless, flat-broke, not a profit seeker" who assisted his sister's business in exchange for meth.

"He's really an addict who needs treatment," Patel said.

Leonard turned himself in after he was charged in January 2013, pleaded guilty and agreed to cooperate with authorities in the hope prosecutors would show leniency.

Leonard had no choice because he faced a mandatory life sentence after prosecutors had filed what's called an "851" motion seeking to enhance his sentence based on three state drug-related convictions.

After Holder's recent directive to local federal prosecutors to be more selective on the sentencing enhancements, local assistant U.S. Attorney Ellie Pierson filed an amended motion citing only one of Leonard's three past convictions. That reduced the possible sentence to a minimum of 20 years, even less if prosecutors agreed to recommend a further break based on Leonard's cooperation.

Leonard proved to be of great assistance to investigators.

Ultimately, all five of his co-defendants pleaded guilty, with four having been sentenced. Leonard's sister, the most culpable of the defendants, was sentenced to 16 years in prison. His sister's husband received seven years. Another co-defendant, Leonard's brother, Robert Leonard, received 11 years.

Prosecutor Pierson described Fred Leonard as "truthful and cooperative" and said he "would have made a good witness" if called to testify.

McCuskey went even further.

"You caused everyone in the case to fold up and plead guilty," he told Leonard.

From life to 10 years

Based on his cooperation, prosecutors suggested Leonard be sentenced to 16 years. That's a 20 percent discount on the 20-year enhanced minimum but longer than the 15 years his sister received. Leonard's sister, however, had no prior convictions that could be used to enhance her sentence.

Court records indicate that Leonard started consuming alcohol and marijuana when he was 11, cocaine when he was 18 and meth in his mid-20s.

While acknowledging his client faced a long prison sentence, defense lawyer Patel argued that "(Leonard) is not a dangerous person" but "has been (an addict) for a number of years."

What did Leonard say for himself? Uneducated, divorced and with minimal job skills, Leonard described himself as "ashamed and embarrassed," fought back tears, apologized to "my mother and my sons" and expressed the hope that he will eventually become "a productive member of society."

Judge McCuskey was more generous than prosecutors. Instead of starting at 20 years and whittling the sentence down from there, McCuskey interpreted the minimum to be 15 years and eight months. From there, he gave Leonard a 35 percent discount because of Leonard's cooperation, reducing the sentence to 10 years and two months.

"I'll round it off to (10 years)," McCuskey said. "You have, by luck, gone from life to (10 years)."

Under federal rules, Leonard will have to serve at least 85 percent of his sentence, roughly 8.5 years.

Leonard will be in his mid-50s when he's released, but that's better than dying behind bars, his original prospect.

While this case turned out differently, McCuskey said "life sentences for non-violent people who are not major drug dealers" has been routinely unjust during his tenure.

"After 15 years, I want out," he said.

A closer look at '851'

U.S. Judge Mark Bennett of Iowa studied "851" sentencing enhancement among 93 federal jurisdictions. The top five districts:

1. Guam, sought enhancements in 100 percent of cases involving eligible defendants

2. North District of Florida, 86.96 percent

3. Southern District of Iowa, 83.56 percent

4. Northern District of Iowa, 79.25 percent

5. Central District of Illinois, 78.95 percent

Other Illinois jurisdictions

9. Southern District of Illinois, 61.82 percent

49. Northern District of Illinois, 11.63 percent

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com.

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