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SENSELESS SENTENCING: A FEDERAL JUDGE SPEAKS OUT

By Robert W. Pratt, U.S. district judge for the Southern District of Iowa; Sunday, January 10, 1999

On Dec. 17, 1998, nine of my fellow citizens appeared before me in Davenport for sentencing on drug charges. The cost to U.S. taxpayers for incarcerating one person for one month in federal prison is $1,910.17. Based on the nine sentences I had to impose under the largely mandatory Federal Sentencing Guidelines, taxpayers were handed a bill of more than $2 million.

There are approximately 650 federal judges across the United States responsible for sentencing drug offenders. If sentencing nine offenders in Davenport, Ia., on one day cost more than $2 million , the effect of 649 other judges doing the same thing across the nation on a daily basis is mind-boggling.

Federal judges used to have wide discretion to fashion sentences they thought were appropriate for the individual and the circumstances of the offense - to "make the punishment fit the crime." However, there is evidence that allowing federal judges and parole boards absolute discretion allowed personal temperament and prejudices to play a part in sentencing. As University of Chicago law professor Albert Alschuler has pointed out, there are both Santa Clauses and Scrooges on the bench, but more troubling were statistics showing that the length of time actually served often pointed to discrimination based on race, class or gender - and punishment should not turn on the luck of the judicial draw. In response to this legitimate problem, Congress established the U.S. Sentencing Commission to create official guidelines that would result in more uniform punishments.

The sentencing guidelines abolish parole and set a mandatory, narrow range, in months, for sentences based only on the particular crime committed and the criminal history of the defendant.

In addition, Congress created "mandatory-minimum sentences" for some crimes, which trump or replace the guideline sentences and require the imposition of specified prison terms for the commission of certain enumerated crimes, including drug crimes.

Costly, Ineffective

There is very little judicial discretion in the current system. While the concern of disparity in sentencing is legitimate, the move from individualized sentences to mandatory ones has proved costly and ineffective.

I have only been a federal judge for a short time. In that time, however, I have learned that sentencing offenders under the guidelines is an emotionally draining experience that requires consideration of the crime and past conduct of the defendant. Consideration must also be given to the effect of guideline sentencing on our country. What have we done by creating a system that many federal judges have rejected as unfair, inefficient and, as a practical matter, ineffective in eliminating drug use and drug-related crime?

As taxpayers, we might be willing to foot the enormous bill for the "war on drugs" if we had seen results, but as the explosion of meth crimes in Iowa illustrates, the guidelines have not helped to cut drug use or crime.

The Federal Judicial Center, the educational arm of the federal courts, frequently conducts surveys and gathers other empirical data to help plan for the future and to advise Congress about needed changes in the law. In 1994, the center did a study on the effect of mandatory minimums and the current guideline sentencing. Judge Myron Bright, a senior 8th Circuit judge, quoted from that survey in a recent case:

"We know from previous work by the Bureau of Prisons that 70 percent of the prison growth related to sentencing since 1985 is attributed to increases in drug-sentence length. '[D]rug law offenders alone are consuming three times more resources than all other federal crimes combined ... unless Congress and the sentencing commission change drug sentences, relief will be nowhere in sight.

Federal Judges' Views

Bright has served with distinction for more than 30 years on the U.S. Court of Appeals for the 8th Circuit - the circuit that includes Iowa. In that same case, he quoted from another Federal Judicial Center study about what judges themselves think of these laws:

"Federal judges who sentence offenders know the problem: 86.4 percent of district judges support changing the current sentencing rules to increase the discretion of the judge; 70.4 percent support repealing most of all mandatory minimum sentencing and 82.8 percent of all district judges feel that federal judges would be appropriate decision-makers about the nature and severity of sanctions to be imposed in criminal cases. More than half would eliminate sentencing guidelines.

"These are not 'soft-headed judges.' They serve on the front lines of the criminal-justice system and know of what they speak. They represent appointees of every president from Eisenhower to Clinton. But the lawmakers and law enforcers, Congress and the administration, seem to turn a deaf ear to the problem and to the unnecessary, immense cost to the taxpayer of unnecessary lengthy incarceration of drug offenders."

In the above case, a respected Iowa federal trial judge was required to sentence a 44-year-old illiterate Iowan to 21 years in prison. The offender had no previous serious criminal convictions, and, as Bright pointed out, was so "dangerous" that pending trial he was released on his own promise to appear for trial. He will be 65 when he emerges from federal prison. The other citizen in this case had grown up on an Iowa farm and, while he had a history of minor involvement with the law prior to this case, he, too, had been released before trial on his promise to appear. This 48-year-old person received a sentence of 19 years in prison. Both of these offenders deserved time in prison. But, as Bright pointed out, it is doubtful that any reasonable judge, who had not had his or her hands tied by the guidelines, would have sentenced these men to more than 10 years in prison.

How did it happen that we built a system that incarcerates our fellow citizens for inordinately long periods of time, wastes huge amounts of taxpayer dollars, ruins lives, and does not accomplish the stated purpose, i.e. to end the illegal consumption of drugs?

Len Bias' Death

In trying to answer that question, I came across an article from the April 1997 Atlantic Monthly, by Eric Schlosser. The author explained that in 1986, after the overdose death of the Boston Celtics' No. 1 draft choice, Len Bias, politicians determined that something had to be done about the growing problem of drug usage. Speaker of the House Tip O'Neill, fearful that the Democratic Party would be seen as "soft on drugs," urged the passage of an omnibus drug-control bill. The legislation was drafted in less than a month between July and August, with no public hearings to obtain input from experts or government officials, such as federal judges, prison authorities or drug-abuse specialists.

There was no consideration of the potential costs or ramifications to the criminal-justice system. The process of selecting drug quantities that would trigger mandatory-minimum sentences was, according to the article, far from scientific: "Numbers were being picked out of thin air." Only 16 members of Congress voted against the bill, which was passed in the Senate on a voice vote. President Reagan signed the final version of the bill a week before the election. Everyone was able to claim that they were tough on drugs.

Left Failed System

Today, there are those who have chosen to resign rather than take part in an immoral, unjust and failed system. J. Lawrence Irving, a distinguished federal judge who was appointed to the federal bench by President Reagan in 1982, resigned his lifetime post in 1990 citing the guidelines as the principal reason. Irving said:

"I am resigning from the bench for a number of reasons, but the main reason has to do with the sentencing guidelines. Before we had unlimited discretion in fashioning sentences to fit individual cases. But the guidelines have taken away from judges all such discretion. Most of the judges I've spoken with agree with that position, but I don't know of any who have resigned. . . . I think I may be the first. It really tugs at your heart when you have to sentence a first-time offender to a mandatory minimum sentence of say 10 years, 15 years with no parole."

Laws Not Working

It is unreasonable to believe that anyone in our government wants laws that do not work. All Americans, judges included, are vitally concerned with the drug problem in America. In my opinion, a pragmatic person would ask:

"Is this policy working?"

According to a recent study by RAND, a prestigious nonprofit policy center, the current policy has not stopped the flow of drugs and is wasting taxpayer dollars. RAND recommends sending dealers to jail for shorter periods and using the money saved to reduce drug dependence. "If reducing (drug) consumption or violence is the goal," the study says, "more can be achieved by spending money arresting, prosecuting and sentencing dealers to standard prison terms than by sentencing fewer dealers to longer, mandatory terms."

The study, which was released in 1997, concluded that it made economic sense to sentence drug dealers who headed drug cartels or were major lieutenants in such organizations, but that "current mandatory minimum laws are not focused on those dealers."

Among the findings of the study was their estimate that for each million dollars spent on long prison terms, 13 kilograms of cocaine were removed from the street. The study found that shorter sentences for more dealers removed 27 kilograms per million dollars spent. Spending the same million dollars on treatment could result in a reduction of over 100 kilograms. This information, it seems to me, should allay the fear that any reduction in penalties for drug offenses will be seen as an endorsement of drug use. We must reject the idea that coming to grips with reality is being "soft on crime."

Back in 1991, Professor Alschuler said, "The sentencing reforms of the past 15 years have pointed in some useful directions, but in their current form they are bankrupt. . . . Some things are worse than sentencing disparity, and we have found them."

If judges and the public speak with a united voice, perhaps the other two branches of government will listen. We must encourage our elected officials to consider immediate reforms to the Federal Sentencing Guidelines to make them less costly and more fair. If we don't speak up, who will?

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