Against his bet­ter judg­ment

In one Amer­i­can meth cor­ri­dor, a fed­eral judge comes face to face with the re­al­ity of con­gres­sion­ally man­dated sen­tenc­ing

The Washington Post Sunday - - FRONT PAGE - BY ELI SASLOW IN SIOUX CITY, IOWA

They fil­tered into the court­room and waited for the ar­rival of the judge, anx­ious to hear what he would de­cide. The de­fen­dant’s fam­ily knelt in the gallery to pray for a le­nient sen­tence. A lawyer paced the en­try­way and re­hearsed his fi­nal ar­gu­ment. The de­fen­dant reached into the pocket of his or­ange jump­suit and pulled out a crum­pled note he had writ­ten to the judge the night be­fore: “Please, you have all the power,” it read. “Just try and be mer­ci­ful.”

U.S. Dis­trict Judge Mark Bennett en­tered and ev­ery­one stood. He sat and then they sat. “An­other hard one,” he said, and the room fell si­lent. He was one of 670 fed­eral dis­trict judges in the United States, ap­pointed for life by a pres­i­dent and con­firmed by the Se­nate, and he had taken an oath to “ad­min­is­ter jus­tice” in each case he heard. Now he read the sen­tenc­ing doc­u­ments at his bench and punched num­bers into an over­size cal­cu­la­tor. When he fi­nally looked up, he raised his hands to­gether in the air as if his wrists were hand­cuffed, and then he re­peated the con­clu­sion that had come to de­fine so much about his ca­reer.

“My hands are tied on your sen­tence,” he said. “I’m sorry. This isn’t up to me.”

How many times had he is­sued judg­ments that were not his own? How of­ten had he apol­o­gized to de­fen­dants who had come to apol­o­gize to him? For more than two decades as a fed­eral judge, Bennett had of­ten viewed his job as less about pre­sid­ing than abid­ing by dozens of manda­tory min­i­mum

es­tab­lished by Congress in the late 1980s for fed­eral of­fenses. Those manda­tory penal­ties, many of which re­quire at least a decade in pri­son for drug of­fenses, took dis­cre­tion away from judges and fu­eled an un­prece­dented rise in pri­son pop­u­la­tions, from 24,000 fed­eral in­mates in 1980 to more than 208,000 last year. Half of those in­mates are non­vi­o­lent drug of­fend­ers. Fed­eral prisons are over­crowded by 37 per­cent. The Jus­tice Depart­ment re­cently called mass im­pris­on­ment a “bud­getary night­mare” and a “grow­ing and his­toric cri­sis.”

Politi­cians as dis­parate as Pres­i­dent Obama and Sen. Rand Paul (R-Ky.) are push­ing new leg­is­la­tion in Congress to weaken manda­tory min­i­mums, but nei­ther has per­suaded Sen. Charles E. Grass­ley (R-Iowa), who chairs the Se­nate Ju­di­ciary Com­mit­tee that is re­spon­si­ble for hold­ing ini­tial votes on sen­tenc­ing laws. Even as Obama has be­gun grant­ing cle­mency to a small num­ber of drug of­fend­ers, call­ing their sen­tences “out­dated,” Grass­ley con­tin­ues to credit strict sen­tenc­ing with help­ing re­duce vi­o­lent crime by half in the past 25 years, and he has de­nounced the new pro­pos­als in a suc­ces­sion of speeches to Congress. “Manda­tory min­i­mum sen­tences play a vi­tal role,” he told Congress again last month.

But back in Grass­ley’s home state, in Iowa’s busiest fed­eral court, the judge who has handed down so many of those sen­tences has con­cluded some­thing else about the le­gacy of his work. “Un­just and in­ef­fec­tive,” he wrote in one sen­tenc­ing opin­ion. “Gutwrench­ing,” he wrote in an­other. “Prisons filled, fam­i­lies di­vided, com­mu­ni­ties dev­as­tated,” he wrote in a third.

And now it was an­other Tues­day in Sioux City — five hear­ings listed on his docket, five more non­vi­o­lent of­fend­ers whose cases in­volved manda­tory min­i­mums of any­where from five to 20 years with­out the pos­si­bil­ity of re­lease. Here in the metham­phetamine cor­ri­dor of mid­dle Amer­ica, Bennett av­er­aged seven times as many cases each year as a fed­eral judge in New York City or Wash­ing­ton. He had sen­tenced two con­victed mur­der­ers to death and sev­eral drug car­tel bosses to life in pri­son, but many of his de­fen­dants were ad­dicts who had be­come mid­dling deal­ers, peo­ple who some­times sounded to him less like per­pe­tra­tors than vic­tims in the case re­ports now piled high on his bench. “His­tory of fam­ily ad­dic­tion.” “Mild men­tal re­tar­da­tion.” “PTSD af­ter suf­fer­ing mul­ti­ple rapes.” “Vic­tim of sex­ual abuse.” “Tem­po­rar­ily home­less.” “Heavy user since age 14.”

Bennett tried to for­get the de­tails of each case as soon as he is­sued a sen­tence. “You ei­ther drain the bath­tub, or the guilt and sad­ness just over­whelms you,” he said once, in his cham­bers, but what he couldn’t for­get was the to­tal, more than 1,100 non­vi­o­lent of­fend­ers and count­ing to whom he had given manda­tory min­i­mum sen­tences he of­ten con­sid­ered un­just. That meant more than $200 mil­lion in tax­payer money he thought had been mis­spent. It meant a gen­er­a­tion of ru­ral Iowa drug ad­dicts he had in­sti­tu­tion­al­ized. So he had be­gun trav­el­ing to dozens of prisons across the coun­try to visit peo­ple he had sen­tenced, an­swer­ing their legal ques­tions and ac­com­pa­ny­ing them to drug treat­ment classes, be­cause if he couldn’t al­ways ful­fill his in­ten­tion of jus­tice from the bench, then at least he could of­fer em­pa­thy. He could look at de­fen­dants dur­ing their sen­tenc­ing hear­ings and give them the dig­nity of say­ing ex­actly what he thought.

“Congress has tied my hands,” he told one de­fen­dant now.

“We are just go­ing to be ware­hous­ing you,” he told an­other.

“I have to up­hold the law whether I agree with it or not,” he said a few min­utes later.

The court­room emp­tied and then filled, emp­tied and then filled, un­til Bennett’s back stiff­ened and his robe twisted around his blue jeans. He was 65 years old, with un­combed hair, a re­laxed pos­ture and a Mid­west­ern un­pre­ten­tious­ness. “Let’s keep mov­ing,” he said, and then in came his fourth case of the day, an­other metham­phetamine ad­dict fac­ing his first fed­eral drug charge, a de­fen­dant Bennett had been think­ing about all week.

His name was Mark Weller. He was 28 years old. He had pleaded guilty to two counts of dis­tribut­ing metham­phetamine in his home town of Deni­son, Iowa, which meant his manda­tory min­i­mum sen­tence as es­tab­lished by Congress was 10 years in pri­son. His max­i­mum sen­tence was life with­out pa­role. For four months, he had been await­ing his hear­ing while locked in a cell at the Fort Dodge Cor­rec­tional Fa­cil­ity, where there was noth­ing to do but watch Fox News on TV, think over his life and write let­ters to peo­ple who usu­ally didn’t write back.

“I can’t tell you how many times I’ve asked my­self, ‘How did I get into the sit­u­a­tion I’m in to­day?’ ” he had writ­ten.

Mar­i­juana start­ing at age 12. Whiskey at 14. Co­caine at 16, and metham­phetamine a few months later. “Al­ways hooked on some­thing” was how some fam­ily mem­bers de­scribed him in the pre-sen­tenc­ing re­port, but for a while he had man­aged to hold his life to­gether. He grad­u­ated from high school, mar­ried, had a daugh­ter and worked for six years at a pork slaugh­ter­house, be­com­ing a union stew­ard and earn­ing $18 an hour. He bought a dou­blewide trailer and a Har­ley, and he tat­tooed the names of his wife and daugh­ter onto his shoul­der. But then his wife met a man on the In­ter­net and moved with their daugh­ter to Mis­souri, and Weller started drink­ing some morn­ings be­fore work. Soon he had lost his job, lost cus­tody of his daugh­ter and, in his own ac­count­ing, lost his “morals along with all self con­trol.” He started spend­ing as much as $200 each day on meth, sell­ing off his Har­ley, his trailer and then sell­ing meth, too. He traded meth to pay for his sis­ter’s rent, for a used car, for gas money and then for an un­reg­is­tered ri­fle, which was still in his car when he was pulled over with 223 grams of metham­phetamine last year.

He was ar­rested and charged with a fed­eral of­fense be­cause he had been traf­fick­ing metham sen­tences phetamine across state lines. Then he met for the first time with his public de­fender, con­sid­ered one of the state’s best, Brad Hansen.

“How much is my bond?” Weller re­mem­bered ask­ing that day.

“There is no bond in fed­eral court,” Hansen told him.

“Then how many days un­til I get out?” Weller asked.

“We’re not just talk­ing about days,” Hansen said, and so he be­gan to ex­plain the sever­ity of a crim­i­nal charge in the fed­eral sys­tem, in which all of­fend­ers are re­quired to serve at least 85 per­cent of what­ever sen­tence they re­ceive. Weller didn’t yet know that a se­ries of wit­nesses, hop­ing to es­cape their own manda­tory min­i­mum drug sen­tences, had in­formed the gov­ern­ment that Weller had dealt 2.5 kilo­grams of metham­phetamine over the course of eight months. He didn’t yet know that 2.5 kilo­grams was just barely enough for a manda­tory min­i­mum of 10 years, even for a first of­fense. He didn’t know that, af­ter he pleaded guilty, the judge would re­ceive a pre-sen­tenc­ing re­port in which his case would be re­duced to a se­ries of cal­cu­la­tions in the con­tro­ver­sial math of fed­eral sen­tenc­ing.

“Vic­tim im­pact: There is no iden­ti­fi­able vic­tim.” “Crim­i­nal his­tory: Min­i­mal.” “Cost of im­pris­on­ment: $2,440.97 per month.”

“Guide­line sen­tence: 151 to 188 months.”

What Weller knew — the only thing he knew — was the ver­sion of sen­tenc­ing he had seen so many times on prime-time TV. He would have a legal right to speak in court. The court would have an obli­ga­tion to lis­ten. He asked his fam­ily to send tes­ti­mo­ni­als about his char­ac­ter to the court­house, be­liev­ing his sen­tence would de­pend not only on Congress or on a cal­cu­la­tor but also on an­other per­son, a judge.

The night be­fore Weller’s hear­ing, Bennett re­turned to a home over­look­ing Sioux City and car­ried the pre-sen­tenc­ing re­port to a re­cliner in his living room. He al­ready had been through it twice, but he wanted to read it again. He put on glasses, poured a glass of wine and be­gan with the let­ters.

“He was do­ing fine with his life, it seems, un­til his wife met an­other man on-line,” Weller’s fa­ther had writ­ten.

“Af­ter she left, the life was sucked out of him,” his sis­ter had writ­ten.

“Bro­ken is the only word,” his brother had writ­ten. “Meth sunk its dirty lit­tle fin­gers into him.”

“I hope this can ex­plain how a child was set up for a fall in his life,” his mother had writ­ten, in the last let­ter and the long­est one of all. “Grow­ing up, all he pretty much had was an al­co­holic mother who was manic de­pres­sive and schiz­o­phrenic. When I wasn’t cut­ting my­self, I was get­ting drunk and beat­ing the hell out of him in the mid­dle of the night. When I wasn’t do­ing all that I was try­ing to kill my­self and end­ing up in a men­tal hos­pi­tal. Can you imag­ine be­ing a four year old and get­ting beat up one day and hav­ing to go visit that same per­son in a men­tal hos­pi­tal the next? No heat in the house, no lights, noth­ing. That was his start­ing point.”

Bennett set down the re­port, stood from his chair and paced across a room dec­o­rated with pho­tos of his own daugh­ter, in the house that had been her start­ing point. There were scrap­books made to com­mem­o­rate each year of her life. There were video­tapes of her high school ten­nis matches and pho­tos of her re­cent grad­u­a­tion from a pri­vate col­lege near Chicago.

He had de­cided to be­come a judge just a few months af­ter her birth, in the early 1990s. His wife had been ex­pect­ing twins, a boy and a girl, and had gone into la­bor sev­eral months pre­ma­turely. Their daugh­ter had sur­vived, but their son had died when he was eight hours old, and the capri­cious­ness of that tragedy had left him search­ing for or­der, for a life of de­lib­er­a­tion and fair­ness. He had quit pri­vate prac­tice and de­voted him­self to the judges’ oath of pro­vid­ing jus­tice, first as a mag­is­trate judge and then as a Bill Clin­ton ap­pointee to the fed­eral bench, go­ing into his cham­bers to work six days each week.

Since then he had sent more than 4,000 peo­ple to fed­eral pri­son, and he thought most of them had de­served at least some time in jail. There were meth ad­dicts who promised to seek treat­ment but then showed up again in court as rob­bers or deal­ers. There were rapists and child pornog­ra­phers that ex­pressed lit­tle or no re­morse. He had in­stalled chains and bolts on the court­room floor to re­strain the most vi­o­lent de­fen­dants. One of those had threat­ened to mur­der his fam­ily, which meant his daugh­ter had spent her first three months of high school be­ing shad­owed by a U.S. mar­shal. “It is a view of hu­man­ity that can be­come disillusioning,” he said, and some­times he thought that it re­quired work to re­tain a sense of com­pas­sion.

Once, on the way to a fam­ily va­ca­tion, he had dropped his wife and daugh­ter off at a shop­ping mall and de­toured by him­self to visit the pri­son in Mar­ion, Ill., then the high­est-se­cu­rity pen­i­ten­tiary in the coun­try. He sched­uled a tour with the war­den, and at the end of the tour Bennett asked for a fa­vor. Was there an empty cell where he could spend a few min­utes alone? The war­den led him to soli­tary con­fine­ment, where pris­on­ers spent 23 hours each day in their cells, and he

Bennett in­side a unit about the size of a walk-in closet. Bennett sat on the con­crete bed, ran his hands against the walls and lis­tened to the hum of the flu­o­res­cent light. He imag­ined the min­utes stretch­ing into days and the days ex­tend­ing into years, and by the time the war­den re­turned with the key Bennett’s mouth was dry and his hands were clammy, and he couldn’t wait to be back at the mall.

“Hell on earth,” he said, ex­plain­ing what just five min­utes as a vis­i­tor in a fed­eral pen­i­ten­tiary could feel like, and he tried to re­call those min­utes each time he de­liv­ered a sen­tence. He of­ten gave vi­o­lent of­fend­ers more pri­son time than the gov­ern­ment rec­om­mended. He had a rep­u­ta­tion for harsh sen­tenc­ing on white-col­lar crime. But much of his docket con­sisted of metham­phetamine cases, 87 per­cent of which re­quired a manda­tory min­i­mum as es­tab­lished in the late 1980s by law­mak­ers who had hoped to send a mes­sage about be­ing tough on crime.

By some mea­sures, their strat­egy had worked: Homi­cides had fallen by 54 per­cent since the late 1980s, and prop­erty crimes had dropped by a third. Pros­e­cu­tors and po­lice of­fi­cers had used the threat of manda­tory sen­tences to en­tice low-level crim­i­nals into co­op­er­at­ing with the gov­ern­ment, ex­chang­ing in­for­ma­tion about ac­com­plices in or­der to earn a plea deal. But most manda­tory sen­tences ap­plied to drug charges, and ac­cord­ing to po­lice data, drug use had re­mained steady since the 1980s even as the num­ber of drug of­fend­ers in fed­eral pri­son in­creased by 2,200 per­cent.

“A dra­co­nian, in­ef­fec­tive pol­icy” was how then-At­tor­ney Gen­eral Eric H. Holder Jr. had de­scribed it.

“A sys­tem that’s over­run” was what Repub­li­can pres­i­den­tial can­di­date Mike Huck­abee had said.

“Isn’t there any­thing you can do?” asked Bennett’s wife, join­ing him now in the living room. They rarely talked about his cases. But he had told her a lit­tle about Weller’s, and now she wanted to know what would hap­pen.

“Child­hood trauma is a mit­i­gat­ing fac­tor, right?” she said. “Shouldn’t that im­pact his sen­tence?”

“Yes,” he said. “Ne­glect and abuse are mit­i­gat­ing. Def­i­nitely.” “And ad­dic­tion?” “Yes.” “Re­morse?” “Yes.” “No his­tory of vi­o­lence?” “Yes. Of course,” he said, stand­ing up. “It’s all mit­i­gat­ing. His whole life is ba­si­cally mit­i­gat­ing, but there still isn’t much I can do.”

The first peo­ple into the court­room were Weller’s mother, his sis­ter and then his fa­ther, who had driven 600 miles from Kansas to sit in the front row, where he was hav­ing trou­ble catch­ing his breath. He gasped for air and rocked in his seat un­til two court mar­shals turned to stare. “Look away,” he told them. “Have a lit­tle re­spect on the worst day of our lives. Look the hell away.”

In came Weller. In came the judge. “This is United States of Amer­ica ver­sus Mark Paul Weller,” the court clerk said.

And then there was only so much left for the court to dis­cuss. Hansen, the de­fense at­tor­ney, could only ask for the manda­tory min­i­mum sen­tence of 10 years, rather than the guide­line sen­tence of 13 years or the max­i­mum of life. The state pros­e­cu­tor could only agree that 10 years was prob­a­bly suf­fi­cient, be­cause Weller had a “num­ber of mit­i­gat­ing fac­tors,” he said. Bennett could only de­lay the in­evitable as the court played out a script writ­ten by Congress 30 years ear­lier.

“This is one of those cases where I wish the court could do more,” said Hansen, the de­fense at­tor­ney.

“He’s cer­tainly not a drug king­pin,” the gov­ern­ment pros­e­cu­tor con­sented.

“He could use a wake-up call,” Hansen said. “But, come on, I mean . . .”

“He doesn’t need a 10-year wake-up call,” Bennett said.

“Ten years is not a wake-up call,” Hansen said. “It’s more like a sledge­ham­mer to the face.”

“We talk about in­cre­men­tal pun­ish­ment,” Bennett said. “This is not in­cre­men­tal.”

They stared at each other for a few more min­utes un­til it was time for Weller to ad­dress the court. He leaned into a mi­cro­phone and read a speech he had writ­ten in his hold­ing cell the night be­fore, a speech he now re­al­ized would do him no good. He apol­o­gized to his fam­ily. He apol­o­gized to the ad­dicts who had bought his drugs. “There is no ex­cuse for what I did,” he said. “I was a hard­work­ing fam­ily man ded­i­cated to my fam­ily. I turned to drugs, and that was the be­gin­ning of the end for me. I hope I get the chance to bet­ter my life in the fu­ture and put this be­hind me.”

“Thank you, Mr. Weller. Very thought­ful,” Bennett said, mak­ing a point to look him in the eye. “Very, very thought­ful,” he said again, and then he is­sued the sen­tence. “You are hereby com­mit­ted to the cus­tody of the bu- reau of prisons to be im­pris­oned for 120 months.” He low­ered his gavel and walked out, and then the court mar­shal took Weller to his hold­ing cell for a five-minute visi­ta­tion with his fam­ily. He looked at them through a glass wall and tried to take mea­sure of 10 years. His grand­mother would prob­a­bly be dead. His daugh­ter would be in high school. He would be near­ing 40, with half of his life be­hind him. “It’s weird to know that even the judge ba­si­cally said it wasn’t fair,” he said.

Down the hall in his cham­bers, Bennett was also con­sid­er­ing the weight of 10 years: one more non­vi­o­lent of­fender packed into an over­crowded pri­son; an­other $300,000 in gov­ern­ment money spent. “I would have given him a year in re­hab if I could,” he told his as­sis­tant. “How does 10 years make any­thing bet­ter? What good are we do­ing?”

But al­ready his as­sis­tant was hand­ing him an­other case file, the fifth of the day, and the court­room was be­gin­ning to fill again. “I need five min­utes,” he said. He went into his of­fice, re­moved his robe and closed his eyes. He thought about the of­fer he had re­ceived a few weeks ear­lier from an old part­ner, who wanted him to re­turn to pri­vate prac­tice in Des Moines. No more sen­tenc­ing hear­ings. No more bath­tub of guilt to drain. “I’m go­ing to think se­ri­ously about do­ing that,” Bennett had said, and he was still try­ing to make up his mind. Now he cleared Weller’s sen­tenc­ing re­port from his desk and added it to a stack in the cor­ner. He washed his face and changed back into his robe.

“Ready to go?” his as­sis­tant asked.

“Ready,” he said.

DANNY WIL­COX FRA­ZIER/VII FOR THE WASH­ING­TON POST

PHO­TOS BY DANNY WIL­COX FRA­ZIER/VII FOR THE WASH­ING­TON POST

U.S. Dis­trict JudgeMark Bennett, shown in the Fed­eral Build­ing and U.S. Court­house in Sioux City, Iowa, says he has re­peat­edly is­sued judg­ments that were not his own.

The Fed­eral Build­ing and U.S. Court­house in Sioux City, which sits within the meth cor­ri­dor of mid­dle Amer­ica.

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