Tuesday, February 21, 2017


In a searing article a federal judge confesses to sentencing defendants to hundreds of years more than she wanted to because she had no choice due to the power of federal prosecutors in sentencing and the necessity of giving minimum mandatory sentencing for the 145 federal crimes that require it. She also notes that the United States with less than five percent of the world's population incarcerates twentyfive percent of the prisoners in the world. She could also have mentioned some of the obvious unfairness in our sentencing including the fact that although rates of drug use for whites and blacks in America are the same blacks are ten times as likely to go to prison as whites.

Finding the
Key to Fair Sentencing
After noting that sentencing factors should focus on the four elastic and at times conflicting sentencing goals of retribution, confinement, deterrence and rehabilitation. 
Yet she often had only one sentencing tool at her disposal, the authority to confine and punish federal defendants with long minimum mandatory prison terms.

... 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.

Here is a federal judge who clearly cares about the people she is sentencing as judges often did in the era before unfair minimum mandatory sentences. Today it's much easier to simply give harsh sentences than to give fair sentences. Every judge knows that it's much less likely that a federal appeals court especially in the eleventh circuit will overturn an overly harsh sentence than a fair one. 

It's interesting and sad that this judge saw herself as little more than a computer or an adding machine for calculating the hundreds of years in prison others must serve. And somehow especially disheartening that her conscience only awoke to make her public attack on harsh federal sentencing after she'd safely retired. 

For judges still working, I ask you, where are you? Where are your voices. Why aren't you speaking out against the injustices that take place in your courtrooms every day? 

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