TechRadars article US federal prosecutors are using the term “felon” in sentencing guidelines that could help explain why federal prosecutors have not been using the phrase “fraudulent,” or “falsified,” in sentencing, a new report from the American Civil Liberties Union (ACLU) has found.
“Federal prosecutors have failed to use this term in sentencing for nearly two decades, and it’s time for them to do so again,” said Amie Stepanovich, ACLU’s senior staff attorney for the civil rights section.
In a report to Congress last month, the ACLU detailed how federal prosecutors used a variety of phrases in sentencing.
“For example, a federal prosecutor can use the term ‘fraudulently obtained,'” Stepanich said.
“A federal prosecutor could say that the defendant conspired to obtain a firearm and falsely declare his criminal history to obtain one.”
The DOJ declined to comment for the report.
But in an interview with TechRadari, the DOJ’s Office of Legal Counsel argued that “federal sentencing guidelines are designed to provide the most appropriate sentence for the offense charged,” and that “using the term fraudulently is not intended to convey a conviction or punishment that is different than the one imposed.”
The Office of the Inspector General, which was tasked with investigating the DOJ and the DOJ Office of Civil Rights (OCR) over the use of “fulminating criminal intent” in their sentencing guidelines, also questioned the DOJ about its use of the term in the guidelines.
“The DOJ Office for Civil Rights and the OCR have a longstanding tradition of using this term and, as a result, have not previously used it in their guidance,” the OIG report states.
“In particular, the OIC has not used the term for a conviction for a federal crime, or even for a civil penalty.”
“I have asked for clarification on whether or not they were using the use [of the term] in the Guidelines and to explain why, as opposed to the term, they are not,” said Jennifer Albright, executive director of the ACLU National Prison Project.
“I’m not sure I can get an answer.”
The ACLU’s report, which will be released on Wednesday, was prompted by a recent study by the advocacy group Sentencing Reform Now.
The group found that of the 1,038 federal criminal cases in which federal prosecutors had used the terms “foul,” “frivolous,” or other terms to describe a defendant, only 16 were “failing to apply the law” to the defendant’s case, and another 14 cases were “unsuccessful,” according to the report, released on Tuesday.
“We are concerned about this disparity and the lack of consistency in federal sentencing guidelines,” said Albright.
And it’s important that prosecutors know they are being held to account when they violate the law and misuse federal sentencing provisions.”