Fabre’s life was troubled, but he was not a leader, a manager or an organizer of drug sales. Nor was he the source of any of the drugs he peddled — in fact, he didn’t even know how his supplier got them. This time, though, he’d sold more than five grams of crack, which meant he faced a mandatory five-year sentence. With no choice in the matter, that is the sentence I imposed. Prison destroyed his relationship with his girlfriend and separated him from his infant daughter. It exposed him to far more sophisticated criminals than he knew on the street. Most important, it is doubtful that prison provided much in the way of treating his drug addiction, which I viewed as the real source of his problems. I would never have imposed that sentence if I hadn’t been forced to. Our laws failed Steven Fabre.
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.
Beginning in the 1970s, ostensibly to fight the war on drugs, Congress and many states passed legislation (like New York’s infamous Rockefeller laws, adopted in 1973) requiring judges to impose harsh minimum sentences for drug offenses. While there were once three co-equal branches of government, there were now two, with the judiciary becoming the less equal branch: The legislative branch had eliminated judicial discretion in sentencing, and prosecutors in the executive branch decided when to charge a crime that carried a strict minimum punishment. This regime resulted in a steady rise in the prison population from 338,000 in 1970 to 2.2 million in 2010.
Mandatory minimums were not the only limit on a judge’s discretion. Before 2005, federal judges were required to follow guidelines developed by the U.S. Sentencing Commission. These rules were intended to eliminate disparities in sentencing that often resulted from the unconscious biases of judges. As early as the 1970s, federal trial judges — including Marvin Frankel, the intellectual father of the Sentencing Commission — noted that judges tended to impose lighter sentences on defendants who looked like them and harsher sentences on those who did not: minorities, undocumented immigrants and drug addicts who appeared in court looking poor and ragged. Unfortunately, the new rules codified some of these disparities: At one time, defendants received five years in prison for possessing five grams of crack, while it took 500 grams of powder cocaine to warrant the same sentence. This 100-to-1 asymmetry was reduced to 20-to-1 in 2010.
The guidelines assign every crime a place on a grid, with one axis for the seriousness of the crime and the other axis for the number and nature of any prior convictions of the defendant. The guidelines permit some adjustments, such as an increase in offense level when the victim of the crime is especially vulnerable, or a decrease in offense level when the defendant accepts responsibility. The grid produces a range of months in prison that a judge previously was, almost without exception, required to impose. Thankfully, in 2005, two decades after the guidelines took effect, the Supreme Court found them unconstitutional; they could be only advisory. This returned discretion to judges — except with respect to mandatory minimum statutes, courtesy of Congress, which are still very much alive.
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.
These common characteristics suggested that the defendants needed a brand of justice that would allow them to get their lives back on track, rather than deprive them of future jobs, roles supporting their families and chances to become productive in their communities. The right punishments would have given them a chance to achieve those goals. But many of the defendants in my courtroom were charged with crimes requiring a mandatory minimum sentence. As with Fabre, there was nothing I could do other than impose the required term.
When a minimum sentence was not required, I often sentenced gently. Fifty-two-year-old Raul Martinez, for instance, had never been in trouble with the law until he was convicted of conspiracy to distribute and possession with the intent to distribute more than five kilograms of cocaine. Martinez had been an alcoholic and a drug addict for nearly 30 years. Despite that, he had spent nine years as a corrections officer and several more working in his family’s garment business. He began selling drugs only after being laid off. The causal connection was clear: He was drug-dependent and needed money, and his son asked him to help in his flourishing drug business. Martinez picked up drugs and money and made small sales to his son’s customers. He played only the menial role of a messenger. Of course, this is not an excuse. Martinez broke the law, and punishment was required. But his circumstances called for compassion and understanding. With a second chance, he could help care for his grandchildren when his son went to prison, which may have saved them from the same mistakes he and his son made.
Martinez faced a mandatory 10-year sentence. But unlike Fabre, he was a first-time, nonviolent drug offender, which qualified him for a provision known as the “safety valve,” releasing him from the fixed sentence. The guidelines still called for between six and seven years in prison, based on the quantity of drugs involved in the offense, but this time I was permitted to consider all of his circumstances. To subtract six years from Martinez’s remaining life would have been extremely out of proportion to the crime. I sentenced him to time served — about 12 months in prison.
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.
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The U.S. Sentencing Commission can be, and has been, part of the solution. During the Clinton administration, Congress and the commissioners created the safety valve. Under President Barack Obama, the commission expanded the safety valve’s reach and eased the guidelines for nonviolent drug offenses. These changes were applied retroactively, allowing early release for many defendants. My hope is that President Trump will appoint commissioners who continue this good work and lobby Congress to reduce or eliminate the mandatory minimum sentencing laws.
Unfortunately, while this concept was one of the few with bipartisan support in recent years, Attorney General Jeff Sessions has already stated his intentions to be tougher on crime and has long pushed for ever-harsher sentences. His Senate record is no less worrisome: Just last year, Sessions blocked the Sentencing Reform and Corrections Act — a popular, bipartisan bill that would have reduced mandatory minimums for nonviolent crimes — from coming to a vote.
Of course, sentencing is the last step in the criminal justice process. Judges do not have the power to address the systemic failures that lead men and women to commit crimes. Organizations like the Vera Institute of Justice and the Brennan Center for Justice are at work right now, engaging families and communities to implement programs diverting children from the criminal justice system and working with state and local governments to attack the social problems, centered largely on poverty and race, that drive so many individuals into criminal activity. Elected officials must strengthen public schools (regardless of Zip code); reach out to addicts, rather than abandon them; and partner with low-income communities, rather than ignore them.
A society, it is often said, is judged by how it treats its least-fortunate members. Criminal defendants deserve a fairer shake.