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How Does This Federal Judge Sleep at Night?

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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.

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)

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There is nothing conservative about prohibition. I... by Malcolm Kyle on Wednesday, Dec 5, 2012 at 12:09:23 PM
Judge Bennett is one of the special, good guys as ... by Gloria Grening Wolk on Wednesday, Dec 5, 2012 at 4:33:19 PM