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The Circumvention of Just Sentencing for Police Brutality, 47 Hastings L.J

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The Circumvention of Just Sentencing for Police Brutality, 47 Hastings L.J Hastings Law Journal Volume 47 | Issue 3 Article 4 1-1996 Unscheduled Departures: The irC cumvention of Just Sentencing for Police Brutality Alexa P. Freeman Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Alexa P. Freeman, Unscheduled Departures: The Circumvention of Just Sentencing for Police Brutality, 47 Hastings L.J. 677 (1996). Available at: https://repository.uchastings.edu/hastings_law_journal/vol47/iss3/4 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Unscheduled Departures: The Circumvention of Just Sentencing for Police Brutality by ALEXA P. FREEMAN* Table of Contents I. Why Police Brutality is a Problem ...................... 684 A . D efinitions .......................................... 684 B. Incidence ........................................... 688 C. Causes .............................................. 690 (1) Police Brutality is a Societal Problem ........... 690 (2) R acism .......................................... 693 (3) Above the Law ................................. 698 D. The Harms of Police Brutality ...................... 701 (1) Rule of Law is Violated ........................ 701 (a) Police brutality exceeds positive law ........ 701 (b) Police brutality perverts the law ............ 702 (c) Police brutality is treated differently from other crimes ................................ 703 (2) Police Brutality Intensifies the Racial Divide ... 705 (3) Social Costs ..................................... 707 II. Treating Police Brutality as a Crime .................... 710 A. Significance of Criminal Prosecutions ............... 712 (1) Collective Condemnation ....................... 713 (2) Sentencing Sends a Message .................... 713 B. Police Brutality is Not Treated as a Serious Crime . 717 (1) State Neglect ................................... 717 (2) Inadequate Federal Response ................... 720 * J.S.D. Candidate, Yale Law School. Former staff attorney for the National Prison Project of the American Civil Liberties Union. I wish to thank Dan Freed for his steady guidance, Nancy Polikoff for rescuing the project, Rachel Roth and other members of my writers' group for their help and encouragement, Fred Freeman for his expert editing, and especially Karla Dobinski for her ongoing support, without which this Article could never have been written. [677] HASTINGS LAW JOURNAL [Vol. 47 (3) Obstacles to Prosecution ........................ 722 (4) A Slap on the Wrist ............................ 727 III. Federal Sentencing Guidelines and Police Brutality ..... 728 A. What the Guidelines Are and How They Work .... 730 (1) G enerally ....................................... 730 (2) Civil Rights Guidelines ......................... 731 B. Police Brutality Guidelines Result in Higher Sentences ........................................... 733 (1) Department of Justice, Criminal Section Data.. 733 (2) Sentencing Commission Data ................... 735 (3) Federal Judicial Center Data ................... 737 (4) Interpreting the Data ........................... 738 C. Prosecutors' Views .................................. 740 IV. Sentencing Guidelines on Trial ......................... 742 A. The Sentencing Commission ........................ 744 (1) History of Enactment ........................... 744 (2) Guidelines Strengthened in the Face of Attack. 748 B. Guidelines Departures by the Courts ............... 751 (1) United States v. Koon ........................... 753 (a) Procedural background ..................... 753 (b) Victim's conduct ............................ 754 (c) A "mix" of departure grounds .............. 761 (i) Defendants' vulnerability in prison ..... 761 (ii) Additional adversarial proceedings ..... 762 (iii) Need to protect the public .............. 763 (iv) Specter of unfairness ................... 763 (2) United States v. Rorke .......................... 766 (a) The facts .................................... 766 (b) The sentencing .............................. 767 (i) Victim's conduct ........................ 769 (ii) Aberrant behavior ...................... 769 (c) An unexceptional case ...................... 770 (3) United States v. Couch .......................... 772 (a) The facts .................................... 772 (b) The sentencing appeal ...................... 774 Introduction Consider these three cases: Case One: Four police officers arrest a man who led them on a high-speed car chase after breaking a church window. They place him in a holding cell and begin to beat him. During the beating, he suffers March 1996] UNSCHEDULED DEPARTURES a heart attack. They break his nose, ribs and teeth. When they are done, he is in a coma, with irreversible brain damage. Convicted of assault, three officers are sentenced to weekends in jail for between thirty and forty-five weekends. The fourth officer receives a sus- pended sentence and 180 hours of community service.' The lenient sentences cause an outcry from the public, but the judge states they have "'already been punished and stigmatized enormously by the un- precedented publicity surrounding this case. ' ''2 Case Two: A police officer arrests the driver of a car and his passenger after a high-speed chase. The passenger is pinned to the ground and handcuffed, then the officer stomps on his body, kicks him, jams a shotgun barrel to his forehead and slams his face against the patrol car. The passenger's injuries include a laceration requiring sutures, a broken nose, contusions to the eyes, several chipped teeth and a contusion on the forehead.3 The officer pleads guilty to a mis- demeanor civil rights charge of using excessive force and is fined $500.4 The judge concludes that the officer's act was aberrant, that he has suffered enough and that he would lose his job if sentenced to probation.5 Case Three: A police officer orders a group of people to leave a public street comer notorious for illegal activity. When two people refuse to leave, the officer repeatedly assaults them with his baton. He is convicted of felony and misdemeanor use of excessive force and sentenced to three years probation and 500 hours of community ser- vice. Although the maximum penalties for these two crimes are three years and eight months in prison respectively, the judge says that he does not think prison is appropriate.6 Since the exposure of reprehensible behavior committed by some police officers in the Los Angeles Police Department through the Rodney King beating and O.J. Simpson trial, media commentators, academicians and politicians across the country are discussing police brutality and other police wrongdoing, bringing to light examples of it 1. Police-BeatingSentences Dismay Montreal Public, SEATrLE TIMES, July 14, 1995, at A17. 2. Editorial, The Montreal Sentencing, VANCOUVER SUN, July 17, 1995, at A. 3. United States' Sentencing Memorandum at 2-5, United States v. Kachadurian (M.D. Fla. Dec. 13, 1989) (No. 89-251-Cr-T-10(A)). 4. Transcript of Sentencing Proceedings at 2,23, United States v. Kachadurian (M.D. Fla. Dec. 13, 1989) (No. 89-251-Cr-T-10(A)). 5. Transcript at 21-23, Kachadurian (No. 89-251-Cr-T-10(A)). 6. Eric Malnic, Judge Gives Ex-Officer Probationfor Beating, L.A. TIMES, Oct. 26, 1991, at B1. HASTINGS LAW JOURNAL [Vol. 47 in their local jurisdictions. Most of these discussions describe the problem and propose steps to be taken in the future to reform police departments and police misconduct. 7 Focusing on the prevention of police brutality should be a priority in these reforms, provided that prevention efforts address its many-layered causes.8 However, it is equally important to ensure that justice is done when prevention fails. This Article addresses a critical part of the criminal justice pro- cess that bears on police brutality-sentencing. The low sentences in the three descriptions above may seem shocking, but they are not at all unusual in police brutality cases. 9 In many instances, police officers manage to avoid prison altogether for criminal acts that, if committed by civilians, would lead to many years imprisonment. 10 When police do go to prison, it is often for a fraction of the sentence that normally results from a particular crime. This is so even when their brutality causes permanent disability or death.1' Now consider this case: Four police officers arrest a man for bur- glarizing a pizzeria. On the spot, they begin to beat him, continuing even after the man is subdued, handcuffed and knocked unconscious. Three of the officers are convicted of misdemeanor battery and mis- conduct and sentenced to sixty days in jail. It is considered "unprece- dented" for police to receive a jail sentence for brutality in that 7. Examples abound of the burgeoning media pursuit of this issue. See e.g., Pierre Thomas, Police Brutality: An Issue Rekindled, WASH. POST, Dec. 6, 1995, at Al (reviewing the scope of, and reactions to, police brutality nationally); Sam V. Meddis, Case Forcing Police to Take a Closer Look, U.S.A. TODAY, Oct. 13, 1995, at 4A (discussing changes in police procedure as a result of the criticism of the Los Angeles Police Department in the O.J. Simpson case); Many Police Chiefs Re-examine Reform after O.J. Trial, NPR Radio Broadcast, Oct. 13, 1995, available in LEXIS,
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