There is no judge I know who does not think that sentencing is the most difficult part of the job. You just do not know how you will respond until you are face to face with the person whom you have to decide whether to put in jail -- and for how long.
Each year, I am randomly assigned 120 to 150 federal criminal cases. More than 95 percent of the defendants negotiate a guilty plea with the U.S. Attorney’s Office. Most who go to trial are convicted. I sentence, therefore, about three defendants a week.
I feel sometimes like a traffic cop just waving along an endless flow of prisoners.
Mandatory minimum sentences had been established in the U.S. as early as 1790, but only for capital offenses. Beginning with the 1956 Narcotic Control Act, however, Congress began imposing them in earnest. By 2009, the U.S. Code contained 171 mandatory minimum provisions, running the gamut from drugs and firearms offenses to obscure crimes such as bribing a Baltimore harbor inspector.
The hard question these minimums raise is this: When, if ever, should Congress override the courts’ sentencing responsibilities? Laws against child pornography illustrate why this is an important issue. Since this industry has flourished on the Internet, Congress has established a mandatory minimum sentence of five years for anyone convicted of receiving or possessing a large number of child pornographic pictures. It also set a mandatory 10-year prison term for anyone convicted twice for possessing even one picture.
In a recent case, United States v. Polizzi, a 56-year-old church-going man with a wife and five children, well-respected in his community and law-abiding, was found to have a double-locked room in the attic of his detached garage where he collected and viewed a lot of child pornography over the Internet. However, he never sent these photos to anyone, nor did he enter teenage chat rooms or attempt online solicitations. He was convicted after a trial, as the jury rejected his insanity defense. Because of the large number of photos he had privately collected, he faced a five-year minimum term.
The judge in the case, Judge Jack B. Weinstein, asked the jurors if they would have made the same decision if they had known that the defendant faced a five-year minimum. A number of them were shocked and said if they had known, they would have accepted the insanity defense. Judge Weinstein ordered a new trial.
I am hardly a fan of child pornography, but I am not at ease with the notion that Congress can usurp the sentencing function and reduce a judge to a bean counter. Sentencing is the solemn and awesome responsibility of a judge -- not a politician.
Most sentencing involves some aspect of illegal drugs. The cases I handle typically involve couriers smuggling the drugs into New York’s John F. Kennedy Airport from Colombia or the Dominican Republic. Usually the couriers risk their lives by swallowing pellets, and try all sorts of things to avoid detection. I have had before me pregnant women, blind men, little children, even a dog that almost died on the plane. The guy who came to retrieve the animal at the airport was arrested, and I gave him a relatively long sentence. (The Drug Enforcement Administration saved the dog’s life, named him Cokie and trained him to be one of its best drug sniffers. Lots of couriers probably got nabbed because of Cokie.)
All sentences must be rendered in open court in the presence of the defendant and his lawyer. The judge has to explain the reasoning, and put it in writing, in case of appeal. In sentencing one particular drug courier -- a woman from Colombia -- I said the court “believes that it’s necessary to continue to send a message, especially to those who have Colombian roots, that they’ll be dealt with harshly by the laws of this country.” I got reversed. The Court of Appeals noted that a reasonable person might think my reference to “Colombian roots” meant that the defendant’s national origin played a role in the sentence.
Since then, I have paid closer attention to the thoughts that come into my head. For example, when I had to sentence a defendant who had never worked but had seven children before his 25th birthday -- three born in the same year -- with five different women, I could not help thinking that the longer I put him away, the fewer additional children he could father. I had to put that idea out of my mind because simply having children is not relevant to the goals of sentencing, which include punishment for the crime and prevention of future crimes. However, his irresponsible lifestyle said something about his character, which is an appropriate factor for my consideration. I gave him a long sentence, and told him his unwillingness to support his children was part of the reason.
I am more forgiving of desperate people -- especially drug swallowers -- who have no jobs or money and come from impoverished places. If it is their first offense, I will usually sentence them to 18 to 24 months, even though the guidelines range is higher. Most of them are undocumented, but some are permanent resident aliens; they will all be deported after they serve their sentence. I am also mindful that it costs $28,000 a year to keep a criminal in jail. I’m not sure that this is a factor that I can legally take into account, so I don’t. Instead, I try to arrive at a sentence that balances the need to punish and deter drug crimes against the reality that the defendant before me will eventually be deported.
When it comes to gun offenses, I tend to sentence within the guidelines range. Most of these cases involve “felons in possession.” It is a federal crime for someone who has committed a felony to have a gun. I’m tough on ex-felons who are caught carrying them. They are dangerous.
I believe in giving realistic sentences. For example, Congress has required that a judge impose a period of supervised release, usually one to five years, after a defendant serves his jail time. Supervised release is a good idea in general but, curiously, Congress did not carve out an exception for those sentenced to life without parole. In my first such sentence, I blindly followed the strictures of the law and sentenced the defendant to 10 years of supervised release. Later I thought how silly this was, and I did not do it the next time. I remembered Charles Dickens’s lamentation about the law being an ass, and could not bring myself to be a donkey.
Because I do not believe in artificial sentencing, I would not have sentenced Bernie Madoff to 150 years. However, the judge in his case calculated that this was what the strict application of the guidelines called for and that, in any event, it was an appropriate symbolic thing to do.
I once sentenced two brothers who had been convicted of engaging in a “pump and dump” stock scheme to five years in prison, although the guidelines range was 30 years to life. While the defendants had pumped up the value of their stock in their publicly traded small business by making material misrepresentations about their business operations and then dumped the stock at a profit, they were hardly in the same category as murderers or the major corporate predators who had bilked the public out of billions.
On the other hand, I have at times been so shocked at the nature of a crime that I imposed an especially stiff sentence. Gerardo Flores Carreto had pleaded guilty to white slavery. He brought young women into the country from Mexico under false pretenses and forced them into prostitution. The sentencing range was 30 years to life, and I started out thinking that the minimum would be appropriate. Thirty years is a long sentence when no one has been killed. However, when I listened to victim after victim tell how they were kept as prisoners, threatened with their lives and treated like animals if they would not turn tricks every day and hand over all their earnings to their captor, I became upset. When the defendant showed no remorse, I sentenced him to 50 years.
(Frederic Block is judge for the U.S. District Court in Brooklyn. This is an excerpt from his book, “Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge,” which will be published on July 17 by Thomson Reuters.)
Today’s highlights: the editors on how bad the Libor scandal could get and on Hillary Clinton’s visit to Egypt; Jonathan Alter on Republicans’ stop-the-vote plan in Pennsylvania; Stephen L. Carter on our national Lincoln obsession; William Pesek on North Korea’s opening to the West; Jonathan Weil on the Barclays Libor scandal; John H. Cochrane on fixing health care.
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