Larry Hiveley -- #29624-008

20 Years -- Marijuana Conspiracy

I am currently serving a nineteen-and-a-half year sentence in a Federal Correctional Institution in Phoenix, Arizona for a marijuana conspiracy. I am lucky in one aspect, my family is only fifteen minutes away and they visit often. Before my incarceration my wife, Kim, and my two stepchildren; Jamie, who is almost 20 and Jerome, who is 12, all lived together on a ten acre ranch. Here we raised quarter horses, Kim worked at a grocery store, and I was a welder. We were a family, something none of us had ever had before. Now my wife is a widow and my stepchildren are orphans of the drug war.

In July of 1994, I went to trial and was found guilty because of uncorroborated hearsay and uncorroborated testimony given by co-conspirators and government expert witnesses. Now my family struggles every day to survive and I struggle with not being there to provide for them. My wife has lost her job because of severe stress and the huge responsibility of being both a mother and father to Jamie and Jerome.

The Federal government took all but 1/3 of our ranch. My wife has had to save and borrow large amounts of money to buy the government out. She struggles to make the mortgage payment and pay other bills while raising two children. Jamie attends Northern Arizona University. She relies on grants/scholarships and financial aid to get her through school. While at school she works three jobs and when she is home on winter and summer breaks she works full time at a men's clothing store to make ends meet. Jerome is in middle school and desperately needs a father in his life.

I ask you -- who is being punished? Who is doing time? The government says that I am, but my family also does time. They suffer, just as many other non-violent drug law violators families suffer. Taxpayers spend over $22,000 a year to keep me away from society for nineteen and a half years without chance of parole. By the time I am released, I will be 65 years old and taxpayers will have spent close to $429,000 to keep me locked away from those that I love. My stepchildren will be grown and will be ready to start, if not, have families of their own. My wife will have worked harder than ever to provide, and we will have missed out on some of the greatest years of our lives.

I am a first-time, nonviolent drug law violator who occupies a cell where a murderer, a rapist or child molester should sit. These criminals and other violent criminals are released into society everyday without serving half of their sentence. These criminals are often repeat criminals and again are released into society. Because of mandatory minimum sentencing I will serve nineteen and half years for marijuana. I have not hurt nor killed anyone, but if I had, I would be done serving time by now.

America is not winning the "War on Drugs," it is simply losing and in the process, creating huge amounts of stress, anger, and distrust toward the government -- not to mention families torn apart.

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Larry's daughter Jamie wrote this essay for her English class:

The Walk

by Jamie L. Latimer

The sun is warming up the world, the birds are singing their songs, and yet I remain unexcited for this day. Stepping from my car I cringe to myself and begin the long journey towards a door that will take me on the walk. A shiver dances up my spine. As the cold wind blows fierce, I sway from side to side, having trouble keeping my balance. The wind stings slightly as it jumps through my blue jeans and thin white T- shirt. My stomach erupts like a volcano that is spewing hot fiery ashes and lava; it burns my insides.

Knowing I am close to the solid, gray, steel door my heart pounds rapidly inside my chest. It jumps like a rabbit that has been caged up, then finally set free. This door is the entrance to a walk that consists of unkindness, coldness, and unhappiness. Feeling my stomach erupt again, this time more powerful than before, I wince. The lava slams against my insides like hot coals that are precisely laid around my stomach's inner lining. I must be strong and trudge on.

Close now, I feel sadness floating in the air. The looks of others who are about to take this walk have looks of unhappiness. Their eyes want to cry also, they want to let loose every time I take this walk. My stomach erupts again. The boiling lava pierces my side and I grunt slightly to myself and hold it gently with my hand. The door stands before me. As it becomes ajar, a harsh wind of unkindness blows over me, and makes my body tingle. Every tiny hair on my arms stand on end and giant goose bumps encompass my body as the uncertainty of the walk begins.

I walk across the hard tile floor and sign in at the dingy desk. I smile, but no smile is returned from the man with salt and pepper hair that lives behind the desk. Placing myself on an uncushioned chair I wait for my name to be called. In front of me a giant gun metal gray monster with huge jet black eyes, a wide mouth with teeth as sharp as a tigers' stands erect. The teeth look as though they could take a body and shred it into millions of tiny pieces, and then wait patiently for its next prey. I am not anxious to pass through this monster. Looking away from this horrible beast, my eyes begin to scan the room.

Children run about the frigid room, they dance with smiles on their faces. The children are blind to the walk that awaits them; they are simply happy to be there. Glancing down at the floor, millions of tiny dots seem to cover up the floor's dirt and grime. It is caked with spilled soda, dirt, grease, and candy. I glance to the side of me where people are quietly carrying on conversations; they try to act calm, but sadness prevails. My stomach lets loose again, and my heart pounds; hard enough to jump out of my chest.

Amongst the laughter from the children, I hear a scream, then another. Looking around frantically I try to discover where it is coming from. It seems I am the only one who hears it. Screams again, and then cries of freedom. Looking closely at the solid, gray, block wall that lays in front of me I hear piercing screams, they are coming from the cold wall. I look closer, completely oblivious to the conversations and the laughter of the children around me. Jumping suddenly, hands extend from the wall; they reach for me to save them. The hands turn into faces of men: young and old, and of every race; these faces cry out to me for freedom. They cry out for the happy life they once had before they were confined to this place, locked away from society, each for a different amount of time. Realizing I can do nothing, I cover my ears with my cold, clammy hands to block out their endless cries.

My name is called. Relief. Walking slowly across the hard, cold, concrete floor, my stomach erupts non-stop. I near the gray monster that wants to eat me. Slowly, I proceed through it and sigh to myself; I have made it. My hand gets stamped, but it can not be seen to the naked eye; the man with the salt and pepper hair grabs my hand and puts it under a black light, now it shows. The walk that I must encounter with several other people begins. A giant steel door buzzes and then opens. Seeing the door open, a new world awaits me and I convince my legs to be strong and carry me forward.

Again, I hear again the piercing cries of freedom. I try to block out these cries, but they remain with me, every minute, every hour, every lasting day. Another solid steel door opens and we move on like a herd of cattle being prodded towards a slaughter house. We pass through another door, and now we are outside; in another world. This world is evil. Freedom doesn't exist and happiness isn't the key to success. This world's key to success is to survive and not to let the system break you. One must survive or one will die inside this world of confinement.

The wind blows about us with purpose; it is teasing as it silently dances about us. It does not have to carry itself on this walk, it slips away quietly as we trudge on. We silently move forward. Glancing up and staring at the many rows of sharp razor wire that engulf a tall chain link fence, I realize that this world is indeed evil, confinement from society with no help of functioning in the world. My heart pounds and blood rushes through my veins, adrenaline takes over. I want to run from the dazed zombies that move forward on this walk. I need to tear apart the fence, rip the razor wire off with my bare hands, giving those cries and screams their freedom. I want them to be proud to be in America. It is not the country that has thrown away the key, but the government.

Then reality sets in and I know I can do nothing, a tear slips down my cheek and past the corner of my lips to trail down my neck and gets caught in my t- shirt. I walk on like the others, in a daze. We come to a steel door with bars; it makes an awful racket opening. Creaking like the gates of a neglected cemetery. Again the taunting wind of sadness blows over us and my salty tears dry as the wind blows past my face.

Finally the last door. Taking a deep breath my stomach erupts one last time. Slowly the door opens. All at once I see smiling faces and hear laughter. Relief. I know this laughter and these smiles will only last a short while, but I will soak it all in like dry sponge being immersed in water. I sit and wait, this time filled with happiness, and my heart pounds with excitement, like a dog's tail wagging in excitement of seeing his owner.

From behind a closed door merges my father. Again, relief. The man dressed in khaki that walks like Popeye slowly comes towards me, smiling with a gleam in his eye. His glowing smile turns this sad place into something wonderful. Love and happiness enter my body and the sadness quickly subsides. He looks a little older. Gray hair takes over his dirty blonde mustache and head. The gray builds character, kinda like dirt and scuffs on a cowboy's boots -- each one earned. we visit, smile, and laugh even though we are encompassed by dull dirt colored walls that are engulfed by fences with razor wire.

"Time is up, all inmates to the rear and all visitors to the front please." The men in crisp white shirts and flat gray pants look out into the room of smiles and those smiles quickly fade. I hug my father goodbye and a salty tear rolls down my cheek as I see my papa shed a tear of his own. He holds me tight and his mustache tickles my cheek. A smile is created. Remaining strong, I convince my legs to carry me past the rows of tables with chairs facing one another, all in a straight line. The men in the crisp white shirts holler for us to say our goodbyes; if only they had to say goodbye as we do. I head towards the giant door that will take me on the walk, only this time it will be in reverse. I have no fears, just hope. Someday my papa will emerge into freedom with me, until then I will take this walk as often as needed, and I will remain strong.

Federal Judge Myron Bright's dissenting opinion in Larry's case:

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Judge Myron Bright

Excerpt from 61 FEDERAL REPORTER, 3d SERIES pg 1363-1366

IV. CONCLUSION

Accordingly, we affirm Henry's conviction and the sentence of twenty-one years eight months of imprisonment. In addition, we affirm Hiveley's sentence of nineteen years six months of imprisonment.

BRIGHT, Senior Circuit Judge, concurring.

I concur but add my separate views concerning the sentence imposed on Hiveley as well as comment on the sentence imposed on his codefendant Henry. This case is the paradigm of what judges often see in the sentencing of drug law offenders. In this case, the sentences are excessively long, but required by the mandatory minimum sentencing provisions and the overlaying requirements of the federal sentencing guidelines.

These unwise sentencing policies which put men and women in prison for years, not only ruin lives of prisoners and often their family members, but also drain the American tax-payers of funds which can be measured in billions of dollars. In these times, the government, Congress and the President see the need to make drastic cuts in the federal budget, including budget cuts which already affect the poor, the disadvantaged and the elderly. This is the time to call a halt to the unnecessary and expensive cost of putting people in prison for a long time based on the mistaken notion that such an effort will win "The War on Drugs." If it is a war, society seems not to be winning, but losing. We must turn to other methods of deterring drug distribution and use. Long sentences do not work and, as I demonstrate below, penalize society.

Let's look at the present case. Ansil Ezra Henry is forty-four years of age and has had no prior serious criminal convictions; only three prior misdemeanor-type crimes which called for small fines or probation. Henry cannot read or write. Henry was such a "dangerous" offender than pending trial, Magistrate Judge John A. Jarvey, a fine jurist, released Henry on his own recognizance. Without question, Henry deserves prison. But, I doubt that any reasonable judge would sentence him to more than twenty-one years in prison as was required by the applicable guidelines. Essentially, the way the guide-lines operate in practice, non-judicial persons in reality send people to jail. The usually zealous prosecutor determines how to charge the offender, and the probation officer calculates the numbers for the judge, i.e., for Henry a total offense level score (38) and criminal history points (3). The judge then sentenced this offender by the numbers, which measured not necessarily his culpability but the weight of the drugs attributable to the conspiracy of which the defendant was a member. In this case, the weight was heavy.

Henry will reach nearly sixty-five years of age as a federal prisoner if he survives his prison term. He will probably leave prison as a geriatric patient at a likely further cost to society. Moreover, the cost of his care in prison will likely increase over that of other more youthful prisoners, as Henry spends his older years behind bars.

Let's look at Hively, the second defendant. He had grown up on an Iowa farm. He is forty-eight years of age and apparently operated a ranch near Phoenix, Arizona where drugs were stored and distributions made. Although Hiveley had some brushes with the law, particularly in his juvenile years, he has zero criminal history points. Here too in pretrial Magistrate Judge Michael Mignilla released this "dangerous" criminal on his own recognizance. The district court sentenced Hiveley to nineteen and one-half years in prison. When released he will be an aged person. I doubt that any reasonable judge would have sentenced these offenders to more than ten years incarceration and most probably to less, given their limited criminal history.

What does the excess time in jail mean to taxpayers? In today's economy it costs about $22,000 per year to put a federal offender in a federal prison (about the same cost as a year at a private college). 3

If each of these defendants serve ten years longer than necessary, taxpayers pick up a bill for twenty years (both offenders) at about $440,000. But that is only an infinitesimal portion of the financial burden imposed by excessive sentences often required by mandatory minimum sentences and the concomitant guidelines.

The United States Department of Justice on February 4, 1994 released an analysis of drug offenders only with minimal criminal histories, entitled An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories. The analysis disclosed that 16,316 federal prisoners could be deemed low-level drug violators. 4 That figure is 36.1% of all drug offenders. The average sentence of low-level offenders was 6.8 years, meaning that these individuals will actually serve an average of five and three-quarter years.

Moreover the study also revealed:
# 1. The majority of low-level drug offenders had no prior record contact with the criminal justice system.
# 2. Two-thirds of the low-level drug offenders in the federal prison have received mandatory minimum sentences.
# 3. Among the low-level offenders, 42.3% were couriers or played peripheral roles in drug trafficking.
# 4. Low-level drug sentences have increased 150% above what they were prior to sentencing guidelines and mandatory minimum sentences. Id. at 3.

In this writer's opinion based on hearing many drug cases on appeal over twenty-seven years, it is doubtful that heavy sentences for low-level drug offenders have aided the war on drugs. It has only increased the cost to the public. What is the cost? Based, again on average cost of housing prisoners in fiscal 1995 at about $22,000 a year, an extra year's incarceration of the low-level offender (16,316) is $358,952,006 (almost $369 million).

If these same low-level drug offenders serve an extra five years of imprisonment over what is a proper, non-guideline, sentence, the cost to the taxpayers exceeds one and three-quarters billion dollars ($1,794,760,000.00). And still that is only part of the story.

The Federal Judicial Center in 1994 did a study on the effect of mandatory minimums and current guideline sentencing. I quote from this study:

We know from previous work by the Bureau of Prisons that 70% of the prison growth related to sentencing since 1985 is attributed to increases in drug sentence length. "Drug 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. The prison population could reach 110,000 by 1997, two-and-a-half times what it was in 1987, at a yearly operating cost of well over $2 billion." The average annual cost of incarceration is $20,747 per prisoner. Construction of new prison space is, of course, an additional expense. Federal, Judicial Center, The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Finding, p. 9 (1994).

As noted, the increases in drug sentencing length require more prisons. Twelve new federal prisons are now under construction and will increase federal prison beds by 19,575. Their cost is over one billion dollars-to be exact, $1,188,000,000. (Hawk letter, July 6, 1995, p. 2)

Again, this is only part of the story. As an appellate judge, I have seen draconian sentences meted out in drug cases where an offender has had no contact with any drugs but may be only a minor functionary in a drug conspiracy where heavy amounts of drugs could be involved. See United States v. Montanye, 962 F.2d 1332 (8th Cir. 1992), reg'g granted, vacated and reg'g in part, 966 F.2d 190 (8th Cir. 1993) (where the offender provided glassware usable to manufacture amphetamines and received a sentence of thirty years in the federal penitentiary).

Federal judges who sentence offenders know the problem. 86.4% of district judge support changing the current sentencing rules to increase the discretion of the judge; 70.4% support repealing most of all mandatory sentencing and 82.8% 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. Federal Judicial Center, Planning for the Future: Results of a 1992 Federal Judicial Center Survey of United States Judges (1994).

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 law makers 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.

I think it can be said that judges are vitally concerned with the drug problem in America. Reason, not emotion, must be brought to bear on the subject. What are judges to do about these unreasonable sentencing rules with which we must apply? I suggest that we must try to make our views known loudly and clearly.

As for this writer, I intend to cite to this opinion and its addendum in every drug case where I believe the present system requires the sentencing judge to impose an unreasonable sentence. I would urge my fellow judges, similarly, to speak out and to write opinions on this subject. The public needs to know that unnecessary, harsh and unreasonable drug sentences serve to waste billions of dollars without doing much good for society. We have an unreasonable system. 5

The message judges, district and circuit, can send Congress and the President i this: If you want to save billions for the country without harming anyone, take a look at and change the rules of sentencing now in the federal courts. If we speak with a united voice perhaps they, and the public will listen.

Footnotes

3. In Fiscal 1994, it cost an average of $58.50 per day to house an inmate in a federal institution. The average annual amount was $21,352. The cost varies depending upon the security level of the institution in which an inmate is confined, as well as the geographic location of the facility. The figure of $58.50 is the system-wide average cost. In Fiscal 1995, we estimate the average cost per day per inmate will be $60.26, with an average annual amount of $21,995. Letter from Kathleen M. Hawk, Director, U.S. Department of Justice, Federal Bureau of Prisons to the Honorable Myron H. Bright (July 6, 1995) (on file with Judge Bright).

4. The study by the Department of Justice defined low-level drug offenders as follows:

In this study, we have examined information on low-level drug law violators. By low-level drug low violators, we mean, essentially, non-violent, offenders with minimal or no prior criminal history whose offense did not involve sophisticated criminal activity and who otherwise did not present negative characteristics which would preclude consideration for sentence modification. U.S. Dept. of Justice, An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories, p. 6 (1994) (footnote omitted).

5. I have written other commentaries on the guidelines. See, e.g. United States v. Griffin, 17 F.3d 269, 273 (8th Cir. 1994) (Bright J., dissenting) (addressing the myth of consistency in sentences under the Guidelines and commenting on the obvious unfairness of mandatory minimum sentences); United States v. Goebel, 898 F.2d 675, 679 (8th Cir. 1990) (Bright, J., concurring) (observing that the Sentencing Guidelines produce disparate and unfair sentencing results among similar offenders); United States v. O'Meara, 895 F.2d 1216, 1221 (8th Cir.) (Bright, J., dissenting), cert. denied, 498 U.S... 943, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990) ("This case opens the window on the sometimes bizarre and topsy-turvy world of sentencing under the Guidelines.")