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October 26, 2012

"How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison"

The title of this post is the headline of this new commentary authored by US District Judge Mark Bennett and published in The Nation. Here are is how it gets going:

Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA.  Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release.  The majority of these women, men and young adults are nonviolent drug addicts.  Methamphetamine is their drug of choice.  Crack cocaine is a distant second.  Drug kingpins? Oh yes, I’ve sentenced them, too.  But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”

You might think the Northern District of Iowa — a bucolic area home to just one city with a population above 100,000 — is a sleepy place with few federal crimes.  You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge.  Here in the heartland, I sentence 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.  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.

Crack defendants 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.  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.

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 countersurveillance 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.”

Several years ago, I started visiting inmates I had sentenced in prison.  It is deeply inspiring to see the positive changes most have made.  Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around.  They are shocked — and glad — to see me, and it’s important to them that people outside prison care about their progress.  For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do.  I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless.  They destroy families and mightily fuel the cycle of poverty and addiction.  In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

October 26, 2012 at 10:43 AM | Permalink

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I didn't find the link to the Nation article above, so here it is: http://www.thenation.com/article/170815/how-mandatory-minimums-forced-me-send-more-1000-nonviolent-drug-offenders-federal-pri#

Posted by: NP | Oct 26, 2012 1:21:37 PM

All hail to Judge Bennett!!! Congratulations to him for his courage. He hits the nail on the head: “Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars… if lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction.”

Our obsession with imposing draconian sentences demeans the system of criminal justice and often irreparably harms defendants, their innocent family members, and society at large. As I have posted before, Justice Anthony Kennedy has observed that “Our resources are misspent, our punishments too severe, our sentences too long.” Address at the American Bar Association Annual Meeting, San Francisco, Ca. (Aug. 9, 2003), available at http:// meetngs.abanet.org/webupload/commupload/CR209800/newsletterpubs/Justice_ Kennedy_ABA_Speech_Final.pdf. “). Most scholars agree that “Contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.” Michael Tonry, The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3. And such draconian sentences are pointless. E.g., U.S. v. Bannister, 786 F.Supp.2d 617 (E.D.N.Y. 2011)(“The increased prison population is due in large part to longer sentences. For the same crimes, American prisoners receive sentences twice as long as English prisoners, three times as long as Canadian prisoners, four times as long as Dutch prisoners, five to 10 times as long as French prisoners, and five times as long as Swedish prisoners. Yet these countries' rates of violent crime are lower than ours, and their rates of property crime are comparable.”). I hope more judges, and those among us with very conservative views, will speak out against our obsessive need to punish with long sentences.

Posted by: Michael R. Levine | Oct 26, 2012 1:58:00 PM

All hail to Bennett and Levine! When will our obsessive need to impose draconian punishment stop? How many lives destroyed? How much of taxpayer money spent building prisons? How many families and neighborhoods decimated? Why a ten-year sentence when a two-year sentence sends the same message? Abolish mandatory minimums and let judges impose the proportionate sentence in each case.

Posted by: onlooker 2 | Oct 26, 2012 2:43:26 PM

Wow, this Judge is a real person. Not a robot rubber stamping the PSR....Its truely refreshing to find someone like him that comes forward....I bet hes given his fair share of below guideline sentences and probably has had several sent back from the 8th circuit..

Judge Bennett, you have some tenacity and good upbringing in you...Thanks for the vote of confidence that maybe something good could change in the future..You hit the nail on the head and articulated the fact that you totally understand the problems. I truly have respect for your intelligence and forth rightness of bringing this out. Thanks.

The power of the federal government is far over reaching and our countrys drunk on debt is showing our weaknesses...Far too many things are way over done by the feds...Drug prosecution is certainly one of them..

Posted by: Midwest Guy | Oct 26, 2012 3:27:26 PM

Hooray for the judge!

Can we expect Bill Otis to be out with a condemnation of the judge and/or his remarks shortly?

Posted by: Misty Mountain Hop | Oct 26, 2012 3:45:08 PM

Misty --

Nope. But you can expect me to suggest that a person who's that unhappy doing the job the law assigns to him would probably feel better in a different job.

Did Judge Bennett not know about MM's when he asked to be considered for the position?

Posted by: Bill Otis | Oct 26, 2012 4:18:18 PM

Three cheers for common sense!

Posted by: Dave from Texas | Oct 26, 2012 4:25:41 PM

I hope more judges like Bennett have the courage to speak out against the mandatory minimums; our politicians have none.

Posted by: Emily not a lawyer | Oct 26, 2012 4:46:20 PM

Emily --

"I hope more judges like Bennett have the courage to speak out against the mandatory minimums..."

What kind of "courage" do you mean? The "courage" to get feted as a hero at the next NACDL convention? To munch on finger sandwiches at some ABA symposium stacked against MM's?

Liberals ceaselessly congratulate themselves for having the "courage" to take postions that get nothing but praise (see, e.g., the comments section here) from the like-minded people they hang around with, and pose no actual risk of damage from any other group -- you know, life tenure and a fancy chambers and all that.

Where's the "courage"?

Posted by: Bill Otis | Oct 26, 2012 4:55:06 PM

Bill, greetings! Surely you are not in favor of mandatory minimum sentences?

Consider that even our conservative Supreme court acknowledges that “a] sentence of imprisonment may work to promote not respect, but derision, of the law if the law if viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.” Gall v. U.S., 552 U.S. 38, 54 (2007). Mandatory minimums don't permit the judge to take into account anything.

Moreover, unnecessarily harsh punishment prescribed by mandatory minimum sentences is self-defeating from society's point of view. As one scholar has summarized:

"In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay[.] [T]his emergent carceral system has become self-generating - that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. ….[M]oreover,…this reproductive process works to create a class of permanently marginalized and degraded noncitizens - disproportionately poor people of color - who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control.”

Sharon Dolovich, Incarceration American Style, Harvard Law & Policy Review, Vol. 3, p 237 (2009).


I agree with the Supreme Court in Gall and with much that Ms. Dolovich has to say. Surely you do as well.

Michael

Posted by: Michael R. Levine | Oct 26, 2012 5:43:52 PM

Hi Michael --

I very much favor MM's, as I strongly suspect a huge majority of the electorate does. The current dispute is less about whether MM's are a bad idea in concept, but simply about whether they're too long.

To be against MM's in all circumstances is to be in favor of limitless judicial power at sentencing. One can be for a good deal of judicial discretion without being for 100%.

Before anyone even heard of MM's as they are currently thought of, a typical state sentence for Crime X would be 5 to 20 in the state pen. The "5" was a mandatory minimum.

If some of the MM's Judge Bennett is complaining about were one year instead of ten years, no one would have a problem with them. As I say, it's about length, not concept. Unless one takes the radical postion that the legislature has no proper say whatever in setting a sentecing floor, one is obliged to favor the concept of MM's, and I certainly do.

P.S. Don't worry, I know you had tongue in cheek.

Posted by: Bill Otis | Oct 26, 2012 6:00:34 PM

what i found interesting is this statement. But nobody else seems to care!

"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."

So 80% of them are the result of illegal searches? Sorry but it's not that easy. I can just about guarantee nobody with illegal shit laying around in their car is goona give anyone permission to search it.

Not even our fuctard govt stoogs are that stupid

Posted by: rodsmith | Oct 26, 2012 6:17:21 PM

rodsmith --

Having been in the USAO for 18 years, I can tell you that you'd be amazed at what some people think they can finesse and talk their way out of. I mean, you've got to be plenty stupid to be driving around with crack in your care under any circumstances.

Posted by: Bill Otis | Oct 26, 2012 6:30:11 PM

Oh i agree. But we are talking a shit load of stupid people. This is right up there with new york cities big "stop and frik" illegal crap that is fixing to get canned. Hell the judge overseeing it has already stated that out of the 1,000's of forms the cops are required to fill out stating thier reason for the stop. They didn't even bother to make up something in over 1/3 of them. So they have basically looking at nothing else violated the civil rights of at least 1/3 of that 2 to 3 Million people they illegaly stopped and search. That is without looking at anything else. Just the basic form they are required to use to document why they had any suspision at all.

This is the same thing. Sorry when you stop "x" number of people and out of "x" number of people each and every one sopposidely gives you the righ to search and they all have something in the car. Makes me think your cheating. Sorry America is the home of the "couch potatoe" no way in hell they all have managed to miss all the tv shows stating this is a retarded thing to do... even if you had nothing in the car! Let along if your holding.

Posted by: rodsmith | Oct 27, 2012 1:09:21 AM

Ano ang sinabi mo ginawa ng maraming kahulugan. Ngunit, isipin ang tungkol ito, kung ano ang kung ikaw ay nagdagdag ng isang maliit na nilalaman? Ibig kong sabihin, wala ko nais na sabihin sa iyo kung paano patakbuhin ang iyong mga blog, ngunit kung ano kung nagdagdag ka ng isang bagay na maaaring makakuha ng tao pansin? Tulad ng isang video o ng isang larawan o dalawang upang makakuha ng. Upang suriin ang antas na ito ng iyong pera sa kani-kanilang mga tungkulin ginagarantiya, bisitahin ang mga website ng mga rate bilang isang resulta ng paghahanap out ang lahat ng ito sa buong google search.

Posted by: bottes timberland | Oct 27, 2012 5:27:20 AM

Lets start by noting that the Judge has chosen to have this piece published not in a middle-of-the-road publication (like The Atlantic), nor in a left-of-center pub (like The New Republic) but in the far-left, radical Nation. That may give a hint as to where he sees himself on the political/jurisprudential spectrum.

And his complaint seems to be not that man-mins make him sentence people to too long in prison, but rather that he should not have to sentence these folks (some of whom, the article makes clear, had prior drug trafficking convictions) to prison at all.

But that's exactly why man-mins are appropriate. The people, speaking through their democratically elected representatives, have figured out that too many judges, like this one, cannot be trusted to impose proper sentences. The blunt fix of man-mins is how we've responded. They unfortunately sweep up some who should actually get a break -- the unfortunate consequence of needing to rein in soft-on-crime judges like the author.

Posted by: Observation | Oct 28, 2012 1:20:45 PM

We have democratically elected representatives? When did that happen?

Posted by: rodsmith | Oct 28, 2012 1:44:07 PM

Observation --

Good observation, so to speak. People tend to forget why mandatory guidelines and statutory minimum sentences came into vogue to begin with. It was for exactly the reason you note: The legislative branch became increasingly alarmed about and distrustful of the courts' mushy response to exploding crime in the Sixties and Seventies.

If we make the same mistake again, we'll get the same response again.

Posted by: Bill Otis | Oct 28, 2012 4:15:11 PM

Bill, perhaps it is best that we have someone uncomfortable with their sentencing doing the sentencing? It's a bit like any power, we shouldn't trust those who enjoy its exercise. You're lucky to have a system that can bring forth the unwilling into such jobs.

Posted by: Mark Kernich | Oct 30, 2012 2:15:50 AM

Dear Judge Bennett, I had a friend sentenced to LIFE for drug trafficing, he has spent 13 years in prison so far. He is trying to appeal his case under the fair sentencing act. He is one that has learned his lesson from his younger years. Can you please email me any information or advice to help him appeal his case. It would be GREATLY appreciated. THANK YOU so much in advance, and may this be a Merry Christmas for everyone.

Posted by: Pam | Dec 13, 2012 10:58:47 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB