How Does This Federal Judge Sleep at Night?

Today’s subject is “how to waste money and inflict maximum pain by locking up non-violent drug users for painfully long jail sentences.”

So let’s get right to it.

The Nation writes about a representative case in point involving a young woman named Sabrina Giles. Sabrina was 22 years old in 2004 and was sentenced to 12 years in prison for Conspiracy to possess with intent to distribute over 50 grams of meth; and possession with intent to distribute over five grams of meth.

The Nation, in its introduction to an article, writes that Sabrina’s parents fought often during her childhood, and frequently their arguments would lead to physical violence. They divorced after Sabrina’s father was incarcerated for trafficking marijuana. Her mother worked hard cleaning motel rooms to provide for Sabrina.

The article is by Federal District Judge Mark W. Bennett, and reading it will make you angry and break your heart. This is not some aberration the Judge trotted out as some kind of an editorial zinger. This description of Sabrina’s tragic journey through our broken criminal justice system was written by the man who reluctantly meted out her sentence. It appeared in the November 12, 2012, edition of The Nation. Judge Bennett was appointed by President Clinton.

There is a second reason Judge Bennett’s article is remarkable. That’s because only a tiny handful of sitting Federal Judges have spoken out publicly on the injustice of mandatory minimum sentences. In doing so, Judge Bennett has shown unusual courage and no doubt earned the enmity of those who think mandatory minimums are solving our drug problem.

Judge Bennett tells us that Sabrina’s battle with substance abuse began at age 12 when she started smoking marijuana. In tenth grade she became pregnant and dropped out of school. The father of Sabrina’s child was extremely abusive and is currently incarcerated.

When Sabrina was 19-years-old, she fell in love with a man 13 years her senior. He was a known methamphetamine dealer in New Mexico and introduced the drug to Sabrina.

On April 30, 2002, police officers went to Sabrina’s home to arrest the man -- he had been living with her since his release from jail three days earlier. Moments before police took him into custody; the man placed 0.79 grams of methamphetamine into Sabrina’s waistband as he hugged her. The police confiscated it, along with 49.95 grams of methamphetamine, 21.1 grams of marijuana, a handgun and her boyfriend’s drug ledger. Sabrina, a single mother, kept the gun for protection. Police arrested Sabrina along with her boyfriend.

Judge Bennett writes that Sabrina pled guilty and was held accountable for between 500 grams and 1.5 kilograms of methamphetamine. Though the sentencing guidelines proscribed a term of 70 to 87 months in prison, the charges against Sabrina carry a ten-year mandatory minimum. Sabrina’s probation officer took into account the detrimental impact her incarceration would have on her family and asked the Court for mercy.

Instead, “The government threatened Sabrina with an additional five-year mandatory minimum for the handgun, but agreed to a plea bargain of 12 years in federal prison”, Judge Bennett wrote.

Thus, a minor participant in the offense, with no criminal record, received just three years less than her boyfriend, a drug dealer who had experienced many run-ins with the law, Judge Bennett says.

He comments that, “During her incarceration, Sabrina has dedicated herself to turning her life round. She works hard at her prison job and maintains a positive attitude. Sabrina’s mother currently cares for Sabrina’s young daughter and is very supportive of Sabrina.”

This is a description of what’s actually happening in the country that has more people in jail than any other country in the world. – about 2.26 million at last count, year-end 2010. In addition, there were 70,792 juveniles in juvenile detention in 2010.

In 2008 approximately one in every 31 adults (7.3 million) in the United States was behind bars, or being monitored (probation and parole). In 2008 the breakdown for adults under correctional control was as follows: one out of 18 men, one in 89 women, one in 11 African-Americans (9.2 percent), one in 27 Latinos (3.7 percent), and one in 45 Caucasians (2.2 percent). Crime rates have declined by about 25 percent from 1988-2008. 70% of prisoners in the United States are non-whites. In recent decades the U.S. has experienced a surge in its prison population, quadrupling since 1980, partially as a result of mandatory sentencing that came about during the "war on drugs." Violent crime and property crime have declined since the early 1990s.

In addition, there were 86,927 held in juvenile facilities as of the 2007 Census of Juveniles in Residential Placement (CJRP), conducted by the Office of Juvenile Justice and Delinquency Prevention. As of 2009, the three states with the lowest ratios of imprisoned people per 100,000 population are Maine (150 per 100,000), Minnesota (189 per 100,000), and New Hampshire (206 per 100,000). The three states with the highest ratio are Louisiana (881 per 100,000), Mississippi (702 per 100,000) and Oklahoma (657 per 100,000).

In some countries, incarceration is a last step, not a first one. When people are locked up, it’s generally because a number of other initiatives have been tried first – and didn’t work. Not so in the US. Prison sentences are what’s being offered. Because, while there are a few promising pilot programs being run to demonstrate alternatives to prison, there are virtually no nationally available programs that are in sync with mandatory minimum sentencing to help the courts and the convicts to avoid wasting needless years in “the joint.”

Judge Bennett writes that he has sentenced more than 3,000 defendants in four federal district courts and reviewed sentences...Far from being a bucolic area, he writes, he sentences “more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco—combined.”

He says, “While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine. More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine. Add crack cocaine and together they account for 87 percent.”

Judge Bennett writes about crack defendants. He says, “They are almost always poor African-Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights.”

He adds: “Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies—which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don’t even have to succeed.”

Why do we have federal mandatory minimum sentences? The enabling legislation is the Sentencing Reform Act of 1984. The Guidelines are the product of the United States Sentencing Commission, which reports to Congress annually. Their primary goal was to alleviate sentencing disparities that research had indicated was prevalent in the existing sentencing system.

The Sentencing Commission’ s future life is in the hands of Congress, which votes the funds for its work. For a number of years, there have been concerted efforts to persuade the Sentencing Commission to recommend to Congress an end to minimum sentencing. But the Commission – which is said to be good at vote-counting – has elected to nibble around the edges.

Few members of Congress appear to be prepared to question the effectiveness of mandatory minimum/maximum sentences. Many members fear primary challenges from rightwing candidates who are eager to accuse incumbents of being “soft on crime.” That attitude is largely responsible for the overly cautious approaches by Congress.

The Guidelines determine sentences based primarily on two factors: 1.the conduct associated with the offense (the offense conduct, which produces the offense level); and 2.the defendant's criminal history (the criminal history category).

The Sentencing Table in the Guidelines Manual shows the relationship between these two factors; for each pairing of offense level and criminal history category, the Table specifies a sentencing range, in months, within which the court may sentence a defendant. For example, for a defendant convicted on an offense with a total offense level of 22 and a criminal history category of I, the Guidelines recommend a sentence of 41–51 months, considering the year of the offense to be the same as the year of the guidelines. If, however, a person with an extensive criminal history (Category VI) committed the same offense in the same manner in the same modern timeline and not during the older guideline periods, the Guidelines would recommend a sentence of 84–105 months.

The prosecutor's power to extract guilty pleas, previously held in check by judges, is now counterbalanced only by the diligence of the defense attorney."

Judge Bennett quotes William J. Stuntz, who claims that "when necessary, the litigants simply bargain about what facts will (and won't) form the basis for sentencing. It seems to be an iron rule: guidelines sentencing empowers prosecutors, even where the guidelines' authors try to fight that tendency...In short, plea bargains outside the law's shadow depend on prosecutors' ability to make credible threats of severe post-trial sentences. Sentencing guidelines make it easy to issue those threats."

The federal guilty plea rate has risen from 83% in 1983 to 96% in 2009, a rise attributed largely to the Sentencing Guidelines.

“I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or counter-surveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months.”

“One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for ‘good time’,” Judge Bennett writes.

He continues: “Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.”
He continues: “If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.”

Judge Bennett concludes: “For years I have debriefed jurors after their verdicts. Northwest Iowa is one of the most conservative regions in the country, and these are people who, for the most part, think judges are too soft on crime. Yet, for all the times I’ve asked jurors after a drug conviction what they think a fair sentence would be, never has one given a figure even close to the mandatory minimum. It is always far lower. Like people who dislike Congress but like their Congress member, these jurors think the criminal justice system coddles criminals in the abstract—but when confronted by a real live defendant, even a ‘drug trafficker,’ they never find a mandatory minimum sentence to be a just sentence.”

We should be grateful to The Nation for publishing a scary piece on a subject many readers may find boring. And we should be equally grateful to Judge Bennett, who held the truth in higher esteem than the unexpressed views of many of his colleagues on the Court.