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February 19, 2017

"I sentenced criminals to hundreds more years than I wanted to. I had no choice."

13FRISK-master675The title of this post is the headline of this recent Washington Post commentary authored by former federal judge Shira Scheindlin. Here are excerpts from a lengthy piece that merits a full read:

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 Anti-Drug 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....

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....

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 was 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.

February 19, 2017 at 05:51 PM | Permalink


Non-violent drug dealers are serial killers of the competition, and made the murder epidemic of the 1980's.

There is nothing to discuss with this slow shuffling, lazy (producing only a verdict a week over 20 years), pro-criminal, unmitigated catastrophe for crime victims. She admits she sentenced below guidelines 80% of the time.

Ivy indoctrinated. New York. Appointed by Clinton. Dismissed.

The Congress should begin to impeach judges for their decisions, their greatest crimes and misdemeanors. She should lose all her immunities. She should be made to make whole the victims of her carelessness, when her criminals cause serious injuries.

Posted by: David Behar | Feb 19, 2017 8:44:07 PM

I Googled "drug charges" and "federal court." People who go to Federal Court are not stoners, or kids in college partying. They are kingpins, and heads of major criminal enterprises. I can't believe this judge is boohooing about kingpins.

This judge is also misleading. Whenever the criminal coddler lawyer talks about over-sentencing, one needs to know the indicted conduct. The end result charge may be a tiny fraction of the indicted conduct. To get the real extent of criminality, and damage to our economy, multiple the indicted conduct by 200, and then multiply that result by the number of years in criminal practice since age 14. That is the true extent of crime by a career criminal. You need a certificate of absolute immunity to get an accurate count of crimes from criminals. This judge's feelings are quite unreliable.

Posted by: David Behar | Feb 19, 2017 8:59:51 PM


As someone who works in a busy federal criminal defense practice, I can tell you that, in my experience, I would not characterize even 15% of our clients as "kingpins."

Posted by: Guy | Feb 20, 2017 8:38:29 AM

I read this piece over the weekend and while I found it to be an interesting take on a federal judge's views on sentencing, I was also surprised and frustrated at the title of the article and the way the judge portrays her decisions as based on "no choice." Having spent time around heroin dealers those who sell other drugs I have heard them use the exact same line to rationalize their actions: "I couldn't get a job and had to support my family so I had no choice but to sell heroin." The AOD rehabilitation programs in prisons are currently premised on the Cognitive Behavioral Therapy model and a primary aspect of this treatment is to get individuals to see decisionmaking as a rational process in which the individual makes a conscious choice out of a number of possible choices. The individual can then see that they are responsible for the choices they make and that their ultimate decision and action is based on their choosing one of the possible choices and acting on it.

When the title of the judge's piece starts out by saying she "had no choice" I cringed. She had an infinite amount of choices that she could have acted on, from standing up and doing a jig on the bench to handing down a sentence below the mandatory minimum. The former would clearly be ridiculous and would bring into question the judge's mental health while the latter would likely result in being overturned on appeal and possible sanctions. That just means the consequences of these actions, given a quick cost/benefit analysis, outweigh their respective benefits. But they are still choices.

Judge Scheindlin writes that because of a mandatory sentence that applied in a case she had "no choice in the matter" but to hand down the mandatory sentence and that she would not have done this if she "hadn't been forced to." However, she then states that she "began to consider resigning," which contradicts the entire presumption that she had "no choice." Resigning from the position is itself a choice. Ironically enough the reasoning for not quitting was that if she didn't hand down the sentence someone else would. I say this is ironic because this is another line I regularly heard from heroin dealers to rationalize their actions: "if I don't sell to these people someone else will."

I quick Google search of "federal trial judge mandatory minimum eighth amendment" brought up at least one article in which a federal district judge in Atlanta declared the mandatory minimum portion of a federal statute unconstitutional. It is of course likely that the judge was reversed on appeal (I didn't look further into it), but that judge clearly made a choice, the choice being to sentence the defendant below the mandatory minimum. The fact that the judge was able to make this choice shows that Scheindlin did in fact have alternative choices form which to choose. I will not deny that there are norms, rules, and laws, that regulate the conduct of a judge at the bottom of the judiciary hierarchy, and that getting reversed repeatedly on the same issue might diminish the judge's reputation and chance for promotion (see work by Lee Epstein, Michael Landes, and Richard A. Posner). But that just means Scheindlin viewed the costs of sentencing below the mandatory minimum as outweighing the possible benefits.

I am sympathetic to the judge's opinion regarding mandatory minimums and their practical implication on a judge using their independent judgement when considering a proper sentence. Additionally, there is much to be said regarding which branch of government should ultimately be responsible for the final sentence determination. In my experience I have seen that in states with indeterminate sentencing schemes the Department of Corrections and parole boards tend to be the institutions that ultimately determine sentence length (as opposed to the judge, legislature, and prosecutor). While I am partial to the judge's opinions, I am disappointed in the way she framed her argument as I believe it diminishes the actions of those district judges that have actually used their authority to try to seize back sentencing authority. The piece certainly is not what I would expect from one trained to "think like a lawyer."

Posted by: Sean | Feb 20, 2017 10:55:04 AM

Newsflash, liberal judge doesn't like handing out harsh sentences--but, gee, maybe the fact that liberal judges were a problem under indeterminate sentencing schemes led to inflexible (and sometimes overly harsh) determinate sentencing schemes.

Posted by: federalist | Feb 20, 2017 12:59:29 PM

@Guy. I am interested in the other 85% of your defense practice for drug charges. Give us more of a break down from the real world. It is possible that lesser defendants are not being recorded in stories listed on Google.

Posted by: David Behar | Feb 20, 2017 1:40:29 PM

Ya think?

Posted by: Fat Bastard | Feb 20, 2017 7:22:44 PM

Nearly all of my fed clients have been street-level rock-slingers selling and hustling just enough to pay for their own drug use. Almost all lived with mom, and few even had a car. The "kingpins" are few and far between. But, the alphabet soup of fed agencies and interdepartmental task forces gotta pay their way, so this is what you get; cops gonna cop.

Posted by: MarK M. | Feb 21, 2017 12:50:46 AM

"No young man on the street was ever deterred from criminal activity by the sentence given to a buddy."

And the person that said thinks that we ought to trust her judgment on sentencing?

Posted by: federalist | Feb 21, 2017 9:30:42 AM

Great Site - I loved the posts
Jeferson Santos – Criminal Attorney Brazil: http://www.advogadoscriminalistasemsp.com.br/criminal-defense-attorneys-lawyers-brazil/

Posted by: Jeferson | Feb 21, 2017 9:36:54 AM

It is interesting hearing the different practices by different U.S. Attorney Offices. In my region, local prosecutors and police departments were given a clear message that we should not even think of referring street-level dealers to the U.S. Attorney's Office. Even when we were stopping people traveling on the interstate from the southwest to points further east, we could only refer the case if we had over a rather substantive threshold of drugs found in the car. In fifteen years, I think we only had one case with a sufficient quantity and we were a significant interdiction county for the state Highway Patrol.

On the broader topic, every offense has a range of punishment -- a mandatory minimum (even if that minimum is a small fine or probation) and a mandatory maximum. While there is always the exceptional case, I think that most rational observers would agree that there should be a significant sentence (what counts as significant is in the eye of the beholder) for a person who forcibly rapes someone or who intentionally kills another (putting aside issue of accomplice liability). In our separation of powers scheme, the responsibility for picking the appropriate sentencing range is for the legislature. Because judges see a large number of offenses every day, there are going to be some cases in which a judge thinks that the sentencing range is unreasonably harsh. There are also probably some cases in which some judges think that the maximum sentence is not long enough. That is the nature of the system. Unless somebody is proposing to do away with sentencing ranges and permit judges to consider the full possibility from probation to a death sentence in every case, then we really should focus on particular offenses rather than using "mandatory minimums are bad" as a substitute for "I don't agree with the sentencing ranges for offense X."

Posted by: tmm | Feb 21, 2017 11:05:43 AM

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