From Professor Doug Berman’s Sentencing Law & Policy blog:

Former federal judge explains how severe sentencing and mandatory minimums prompted his resignation

 

Last year I remember reading this local article about former US District Judge Kevin Sharp leaving the federal bench after only six years.  The former judge’s complaints about mandatory minimum sentencing realities were partially spelled out in that article, but now I see this notable new Cato piece titled “Powerless on the Bench” which reprints Sharp’s accounting for his decision.  I recommend the piece in full, and here are excerpts:

Like a lot of judges who take the bench, I had limited experience in criminal law.  Criminal law is fairly simple — much simpler than the tax code or some of the other things that I had done.  But it soon became the hardest thing I did on the bench.  In civil cases, my rulings generally concerned money.  But in criminal cases, when I said the “sentence is imposed as stated,” somebody was placed in handcuffs and led away by a U.S. marshal.

Early on, I sentenced a young man, Antonio, who was 27.  He was charged as a felon in possession of a firearm.  He had been convicted of two armed robberies at 17 years old.  At 27, Antonio is doing what we all hope a criminal defendant does after being convicted: he gets a job.  He is in contact with his family.  He does not do drugs . He does not drink.  But Antonio had been doing one thing that he should not have been.

Antonio was driving down the street and, without being too graphic, he and his girlfriend were engaged in an activity that caused him to cross slightly over the double-yellow line. The police saw it and pulled him over.  The police suspected his girlfriend was a prostitute, so they split Antonio and his girlfriend up and asked them questions. The police realized based on her answers that she in fact was Antonio’s girlfriend. Then, the police said, “OK, we are going to let you go.  Oh, by the way, do you mind if we search your car?” Antonio, forgetting that he had an unloaded pistol under the front seat of his car, responded, “No, go ahead.”

Antonio was charged with being a felon in possession of a firearm.  Because he was convicted as an adult in his prior crimes, his mandatory minimum sentence was 15 years.  I read his case and thought this could not be right.  Fifteen years? What are “mandatory minimums”?  I did not fully understand what they were at the time.  I spent the next several days trying to figure out how to get around the minimum sentence — it cannot be done.

Regrettably, I did what I had to do.  I sentenced Antonio to 15 years.  I thought to myself, “What in the world are we doing?  Why would the government take away my ability to fashion a fair sentence?  I know what a judge is supposed to consider in determining how to fashion a sufficient sentence.  What I have done is in no way, shape, or form an appropriate sentence.”

Several years later, I had the same conversation with myself.  This time, the case involved a 22-year-old kid, Chris Young.  He was caught up with a group of members of the Vice Lords, a gang known for running cocaine and crack through middle Tennessee.  Chris was not a member of this gang.  He was an aspiring rapper who would hang out with members of the Vice Lords because one of the gang members had a studio. He was occasionally asked to make crack, but he did not know how.

Chris was arrested as part of a 30-person indictment for drug conspiracy.  Chris was such a minor player in the drug conspiracy — he did not even know how to make crack.  I think the only reason the DEA arrested him was because he happened to be at a gas station when they took down the Vice Lords’ leader.  He was at the wrong place with the wrong group at the wrong time.  The only evidence showing Chris’s connection to the gang were tapes from their wiretaps where Chris is talking to the gang’s leader about how he cannot figure out why the crack he has cooked did not turn out right.  The leader gets frustrated and finally says, “I’ll just come over and do it myself.”  That was basically the extent of it.

The prosecutor told Chris, “You can plead guilty, and we will give you twelve years.”  Chris is 22 and thinks, “12 years, no! I’m so minor in all of this, I will go to and win at trial.”  His lawyer convinces him that he should not go to trial, given his two prior drug convictions (one for less than half a gram of crack, which is about a sugar packet of crack) and the penalty he could face if convicted again — a mandatory life sentence.  At this point, the prosecutor changes his mind and says, “12 years was last week’s price — this week’s price is 22 years, and if you turn this down, next week’s price may be higher.”  A 22-year-old, Chris thought, “22 years is life! I’ll take my chances at trial.” Only three people of this 30-person group arrested, by the way, went to trial.  Everybody else pled guilty.  At trial, these three people, who happened to also be the lowest members of this conspiracy, all got life in prison.  Every single one of them.  Yes, the Vice Lords were selling a lot of drugs, but not Chris, and not the other two defendants who also decided to go to trial.  They all are behind bars for life.

Chris Young grew up in the projects, did not know his father, and saw his mother in and out of jail for her drug addiction.  When his mother had been sent to jail, Chris and his brother would stay in the house without electricity, water, or money for food.  They would eat out of garbage cans or ask neighbors to give them food.  When they were tired of the way that they smelled, they asked neighbors if they could take a shower.  This is how Chris grew up.  His brother eventually died.  It is unclear as to whether he committed suicide or was murdered.  I could not consider any of his hardships.  I could only look at how he was charged, and his charges led to his mandatory life sentence….

Members of Congress, in their desire to be elected and reelected, often show how tough on crime they can be, and they say, “Look, mandatory minimums are necessary so that we can take discretion away from the judges.”  But these legislators have not taken away discretion, they have just moved it to the prosecutor, who has a dog in the hunt.  If somebody said, “Well wait a minute, let’s not allow the prosecutor to do it but the defense counsel,” they would say “You’re insane!  Why would you do that?”  My position, then, is why would you give discretion to the prosecutor?

Because of the way that I grew up, as I saw criminal defendants come through my court, I would think about how I may have gone to high school or have worked at an oil refinery with these people.  These were real people who faced real consequences.  And, despite my position, I was told what to say.  I was just a messenger.  And I thought to myself, “Somebody else can be a messenger.  If real change is going to be made, then I need to do that on the other side of the bench.  Sure, I am giving up a lifetime appointment, but am I going to walk in here every day and do things that I do not think are just? The government can pay me for life to do that, but that is not enough for me.  The government does not pay me enough for this — I cannot be paid.


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