I put peo­ple in prison for too long. I had no choice.

For­mer fed­eral judge Shira A. Scheindlin on how manda­tory min­i­mums take jus­tice out of the sys­tem

The Washington Post Sunday - - OUTLOOK - ss­cheindlin@stroock.com Shira A. Scheindlin, a for­mer fed­eral judge in the South­ern Dis­trict of New York, is a mediator and ar­bi­tra­tor with JAMS and a lawyer at Stroock, Stroock & La­van. Peter Dubrowski, an as­so­ci­ate at the law firm of Morvillo Abramowit

In the fall of 2007, Steven Fabre ap­peared in my court­room. He was a 29-year-old New York na­tive there to plead guilty to a sin­gle count of pos­ses­sion with in­tent to dis­trib­ute crack. Fabre was a typ­i­cal street dealer who found busi­ness by ap­proach­ing cars or pedes­tri­ans. He used the pro­ceeds from his sales to feed his own ad­dic­tion; he’d been us­ing drugs since he was 14. Fabre had a num­ber of con­vic­tions for very mi­nor of­fenses, plus one for sell­ing a small quan­tity of a con­trolled sub­stance, for which he re­ceived five years of pro­ba­tion when he was 18. He never grad­u­ated from high school and had worked only for a short time, stock­ing his par­ents’ small gro­cery store.

Fabre’s life was trou­bled, but he was not a leader, a man­ager or an or­ga­nizer of drug sales. Nor was he the source of any of the drugs he ped­dled — in fact, he didn’t even know how his sup­plier got them. This time, though, he’d sold more than five grams of crack, which meant he faced a manda­tory five-year sen­tence. With no choice in the mat­ter, that is the sen­tence I im­posed. Prison de­stroyed his re­la­tion­ship with his girl­friend and sep­a­rated him from his in­fant daugh­ter. It ex­posed him to far more so­phis­ti­cated crim­i­nals than he knew on the street. Most im­por­tant, it is doubt­ful that prison pro­vided much in the way of treat­ing his drug ad­dic­tion, which I viewed as the real source of his prob­lems. I would never have im­posed that sen­tence if I hadn’t been forced to. Our laws failed Steven Fabre.

In my nearly 22 years as a U.S. dis­trict judge in New York, I sen­tenced roughly 1,000 de­fen­dants. Thank­fully, not all were sub­ject to “manda­tory min­i­mum” sen­tences — in which Congress has im­posed a re­quired statu­tory pun­ish­ment for a par­tic­u­lar crime. But many were; 145 fed­eral crimes still re­quire a min­i­mum sen­tence, in­clud­ing dis­tri­bu­tion of nar­cotics, im­mi­gra­tion vi­o­la­tions and iden­tity theft, just to name a few.

Ev­ery first-year law stu­dent learns that sen­tenc­ing has four goals: ret­ri­bu­tion, in­ca­pac­i­ta­tion, de­ter­rence and re­ha­bil­i­ta­tion. Yet thanks mostly to the Sen­tenc­ing Reform Act of 1984 and the An­tiDrug Abuse Act of 1986, I was of­ten pro­hib­ited from as­sess­ing a defendant’s his­tory, per­sonal char­ac­ter­is­tics or role in the of­fense. In sen­tenc­ing, where judg­ment should mat­ter most, I could not ex­er­cise my judg­ment. I felt more like a com­puter than a judge. And I was not alone. Over the years, many of my col­leagues on the fed­eral bench felt the same frus­tra­tions.

This prob­lem up­set me as soon as I was ap­pointed in 1994. Manda­tory min­i­mums were al­most al­ways ex­ces­sive, and they made me feel un­eth­i­cal, even dirty. Af­ter seven years, my pa­tience had run thin and my con­science was trou­bled; I be­gan to con­sider re­sign­ing. I sought the ad­vice of a revered men­tor, a fed­eral judge with more than 30 years of ex­pe­ri­ence. He pointed out that quit­ting would serve no­body, as an­other judge would be re­quired to im­pose iden­ti­cal sen­tences any­way. He also said that if I left, the bench would lose a judge who could ad­vo­cate for crim­i­nal jus­tice reform through her de­ci­sions. So I re­mained. But to this day, I am pained by many of the sen­tences I was re­quired by law to im­pose. While I bore the ti­tle “Honor­able Judge,” I felt less than honor­able and more like a com­plicit tool of an un­just sys­tem.

The fact that the United States, with less than 5 per­cent of the world’s pop­u­la­tion, in­car­cer­ates 25 per­cent of the world’s pris­on­ers is largely due to manda­tory min­i­mum sen­tences.

Be­gin­ning in the 1970s, os­ten­si­bly to fight the war on drugs, Congress and many states passed leg­is­la­tion (like New York’s in­fa­mous Rock­e­feller laws, adopted in 1973) re­quir­ing judges to im­pose harsh min­i­mum sen­tences for drug of­fenses. While there were once three co-equal branches of gov­ern­ment, there were now two, with the ju­di­ciary be­com­ing the less equal branch: The leg­isla­tive branch had elim­i­nated ju­di­cial dis­cre­tion in sen­tenc­ing, and pros­e­cu­tors in the ex­ec­u­tive branch de­cided when to charge a crime that car­ried a strict min­i­mum pun­ish­ment. This regime re­sulted in a steady rise in the prison pop­u­la­tion from 338,000 in 1970 to 2.2 mil­lion in 2010.

Manda­tory min­i­mums were not the only limit on a judge’s dis­cre­tion. Be­fore 2005, fed­eral judges were re­quired to fol­low guide­lines de­vel­oped by the U.S. Sen­tenc­ing Com­mis­sion. These rules were in­tended to elim­i­nate dis­par­i­ties in sen­tenc­ing that of­ten re­sulted from the un­con­scious bi­ases of judges. As early as the 1970s, fed­eral trial judges — in­clud­ing Marvin Frankel, the in­tel­lec­tual fa­ther of the Sen­tenc­ing Com­mis­sion — noted that judges tended to im­pose lighter sen­tences on de­fen­dants who looked like them and harsher sen­tences on those who did not: mi­nori­ties, un­doc­u­mented im­mi­grants and drug ad­dicts who ap­peared in court look­ing poor and ragged. Un­for­tu­nately, the new rules cod­i­fied some of these dis­par­i­ties: At one time, de­fen­dants re­ceived five years in prison for pos­sess­ing five grams of crack, while it took 500 grams of pow­der co­caine to war­rant the same sen­tence. This 100-to-1 asym­me­try was re­duced to 20-to-1 in 2010.

The guide­lines as­sign ev­ery crime a place on a grid, with one axis for the se­ri­ous­ness of the crime and the other axis for the num­ber and na­ture of any prior con­vic­tions of the defendant. The guide­lines per­mit some ad­just­ments, such as an in­crease in of­fense level when the vic­tim of the crime is es­pe­cially vul­ner­a­ble, or a de­crease in of­fense level when the defendant ac­cepts re­spon­si­bil­ity. The grid pro­duces a range of months in prison that a judge pre­vi­ously was, al­most with­out ex­cep­tion, re­quired to im­pose. Thank­fully, in 2005, two decade­safter the guide­lines took ef­fect, the Supreme Court found them un­con­sti­tu­tional; they could be only ad­vi­sory. This re­turned dis­cre­tion to judges — ex­cept with re­spect to manda­tory min­i­mum statutes, cour­tesy of Congress, which are still very much alive.

Ju­di­cial dis­cre­tion in sen­tenc­ing mat­ters. Many judges, in­clud­ing me, rou­tinely sen­tence be­low the guide­lines, par­tic­u­larly for first-time, non­vi­o­lent drug of­fend­ers. In­deed, in 2015, only 36.5 per­cent of all drug of­fenses na­tion­wide re­sulted in a guide­line-com­pli­ant sen­tences. Be­tween 2005 and May 2016, when I re­tired from the bench, I sen­tenced more than 200 de­fen­dants con­victed of nar­cotics of­fenses and im­posed a lighter-than-ad­vised sen­tence more than 80 per­cent of the time. Had I sen­tenced at the top of the guide­lines’ range, these de­fen­dants would have served more than a mil­len­nium of ad­di­tional prison time.

Af­ter I left the bench, Peter Dubrowski — my last law clerk — and I de­cided that we would re­view the sen­tenc­ing pro­to­cols for each of those 200 de­fen­dants. As I ex­pected, we found strik­ingly sim­i­lar sto­ry­lines. The over­whelm­ing ma­jor­ity of the de­fen­dants were in­di­gent. Seventy-two per­cent had chil­dren to sup­port, and many of the de­fen­dants were un­der the age of 25 — barely adults them­selves. More than half had not grad­u­ated from high school, most had not ob­tained a GED, and barely 5 per­cent had at­tended col­lege. A ma­jor­ity bat­tled al­co­hol ad­dic­tion, drug ad­dic­tion or both and had be­gun abus­ing sub­stances by age 14. Most were un­em­ployed. Most came from sin­gle-par­ent homes, and most had at least one par­ent who was, or had been, in­car­cer­ated.

These com­mon char­ac­ter­is­tics sug­gested that the de­fen­dants needed a brand of jus­tice that would al­low them to get their lives back on track, rather than de­prive them of fu­ture jobs, roles sup­port­ing their fam­i­lies and chances to be­come pro­duc­tive in their com­mu­ni­ties. The right pun­ish­ments would have given them a chance to achieve those goals. But many of the de­fen­dants in my court­room were charged with crimes re­quir­ing a manda­tory min­i­mum sen­tence. As with Fabre, there was noth­ing I could do other than im­pose the re­quired term.

When a min­i­mum sen­tence was not re­quired, I of­ten sen­tenced gen­tly. Fifty-two-yearold Raul Martinez, for in­stance, had never been in trou­ble with the law un­til he was con­victed of con­spir­acy to dis­trib­ute and pos­ses­sion with the in­tent to dis­trib­ute more than five kilo­grams of co­caine. Martinez had been an al­co­holic and a drug ad­dict for nearly 30 years. De­spite that, he had spent nine years as a corrections of­fi­cer and sev­eral more work­ing in his fam­ily’s gar­ment busi­ness. He be­gan sell­ing drugs only af­ter be­ing laid off. The causal con­nec­tion was clear: He was drug-de­pen­dent and needed money, and his son asked him to help in his flour­ish­ing drug busi­ness. Martinez picked up drugs and money and made small sales to his son’s cus­tomers. He played only the me­nial role of a mes­sen­ger. Of course, this is not an ex­cuse. Martinez broke the law, and pun­ish­ment was re­quired. But his cir­cum­stances called for com­pas­sion and un­der­stand­ing. With a sec­ond chance, he could help care for his grand­chil­dren when his son went to prison, which may have saved them from the same mis­takes he and his son made.

Martinez faced a manda­tory 10-year sen­tence. But un­like Fabre, he was a first-time, non­vi­o­lent drug of­fender, which qual­i­fied him for a pro­vi­sion known as the “safety valve,” re­leas­ing him from the fixed sen­tence. The guide­lines still called for be­tween six and seven years in prison, based on the quan­tity of drugs in­volved in the of­fense, but this time I was per­mit­ted to con­sider all of his cir­cum­stances. To sub­tract six years from Martinez’s re­main­ing life would have been ex­tremely out of pro­por­tion to the crime. I sen­tenced him to time served — about 12 months in prison.

Does the length of the sen­tence de­ter peo­ple out­side the court­room from com­mit­ting crimes? This is a pop­u­lar idea in our coun­try. Over time, I came to be­lieve it is fic­tion. If this ef­fect were real, my fel­low judges and I would have seen nar­cotics ar­rests and prose­cu­tions de­cline over the years. They never did. No young man on the street was ever de­terred from crim­i­nal ac­tiv­ity by the sen­tence given to a buddy. “Con­trary to de­ter­rence ide­ol­ogy and ‘get tough’ rhetoric,” says a re­port from the Sen­tenc­ing Project, a non­profit that stud­ies crim­i­nal pun­ish­ment, the ev­i­dence “fails to sup­port” de­ter­rence.

The U.S. Sen­tenc­ing Com­mis­sion can be, and has been, part of the so­lu­tion. Dur­ing the Clin­ton ad­min­is­tra­tion, Congress and the com­mis­sion­ers cre­ated the safety valve. Un­der Pres­i­dent Barack Obama, the com­mis­sion ex­panded the safety valve’s reach and eased the guide­lines for non­vi­o­lent drug of­fenses. These changes were ap­plied retroac­tively, al­low­ing early re­lease for many de­fen­dants. My hope is that Pres­i­dent Trump will ap­point com­mis­sion­ers who con­tinue this good work and lobby Congress to re­duce or elim­i­nate the manda­tory min­i­mum sen­tenc­ing laws.

Un­for­tu­nately, while this con­cept was one of the few with bi­par­ti­san sup­port in re­cent years, At­tor­ney Gen­eral Jeff Ses­sions has al­ready stated his in­ten­tions to be tougher on crime and has long pushed for ever-harsher sen­tences. His Se­nate record is no less wor­ri­some: Just last year, Ses­sions blocked the Sen­tenc­ing Reform and Corrections Act — a pop­u­lar, bi­par­ti­san bill that would have re­duced manda­tory min­i­mums for non­vi­o­lent crimes — from com­ing to a vote.

Of course, sen­tenc­ing is the last step in the crim­i­nal jus­tice process. Judges do not have the power to ad­dress the sys­temic fail­ures that lead men and women to com­mit crimes. Or­ga­ni­za­tions like the Vera In­sti­tute of Jus­tice and the Bren­nan Cen­ter for Jus­tice are at work right now, en­gag­ing fam­i­lies and com­mu­ni­ties to im­ple­ment pro­grams di­vert­ing chil­dren from the crim­i­nal jus­tice sys­tem and work­ing with state and lo­cal gov­ern­ments to at­tack the so­cial prob­lems, cen­tered largely on poverty and race, that drive so many in­di­vid­u­als into crim­i­nal ac­tiv­ity. Elected of­fi­cials must strengthen pub­lic schools (re­gard­less of Zip code); reach out to ad­dicts, rather than aban­don them; and part­ner with low-in­come com­mu­ni­ties, rather than ig­nore them.

A so­ci­ety, it is of­ten said, is judged by how it treats its least-for­tu­nate mem­bers. Crim­i­nal de­fen­dants de­serve a fairer shake.

Does the length of sen­tences de­ter peo­ple from crime? If so, I would have seen nar­cotics cases de­cline over the years. They never did. For­mer fed­eral judge Shira A. Scheindlin

JASU HU FOR THE WASH­ING­TON POST

JESSE DITTMAR FOR THE WASH­ING­TON POST

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