White Judge says: "I sentenced criminals to hundreds more years than I wanted to. I had no choice"
/Shira A. Scheindlin, a former federal judge in the Southern District of New York, is a mediator and arbitrator with JAMS and a lawyer at Stroock, Stroock & Lavan. Peter Dubrowski, an associate at the law firm of Morvillo Abramowitz Grand Iason & Anello, assisted in the preparation of this essay.
In the fall of 2007, Steven Fabre appeared in my courtroom. He was a 29-year-old New York native there to plead guilty to a single count of possession with intent to distribute crack. Fabre was a typical street dealer who found business by approaching cars or pedestrians. He used the proceeds from his sales to feed his own addiction; he’d been using drugs since he was 14. Fabre had a number of convictions for very minor offenses, plus one for selling a small quantity of a controlled substance, for which he received five years of probation when he was 18. He never graduated from high school and had worked only for a short time, stocking his parents’ small grocery store.
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.
The fact that the United States, with less than 5 percent of the world’s population, incarcerates 25 percent of the world’s prisoners is largely due to mandatory minimum sentences.
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. [MORE]
