THE CRIME OF PUNISHMENT

I. ANDERSON.

September 8, 1989, was the most wrenching day of my time on the bench. On that day I had to sentence Richard Anderson to 10 years in prison. Here is the story of Richard Anderson. He was a 49 year old longshoreman with an unblemished record of 24 years as a worker on the Oakland docks. He had never been in trouble with the law. One day as he was driving along San Pablo Blvd. a young acquaintance called to him and asked for a ride to a nearby Burger King. For $5 Anderson agreed to take him there. At the Burger King, the young man got out and asked Anderson to wait. As he waited, a man he did not know stuck his head through the car window and asked, “Is that it?”, picking up a paper bag the young man had evidently left in Anderson’s car. The next thing Anderson knew he was handcuffed and under arrest.

Anderson was charged with conspiracy to distribute drugs His acquaintance was also charged but escaped and was not caught until years later Because the paper bag contained 100 grams of crack cocaine--about 4oz worth $2,300 on the street--the mandatory minimum sentence for the offense was ten years. Anderson’s lawyer tried to negotiate a plea deal by offering his cooperation but he had nothing of value to offer the prosecutor since he didn’t know the whereabouts of his acquaintance. So Anderson rolled the dice and went to trial. He took the stand and told his story. The jury found that Anderson knew he was taking his acquaintance to a drug deal and convicted him of conspiracy.

I had no alternative but to sentence him to ten years. Under the mandatory sentencing laws, the judge has no discretion. The US attorney of course has discretion in his charging decision. He could readily have believed Anderson’s story and declined to prosecute, or he could have charged Anderson with a lesser offense--say simple possession of drugs carrying a five year mandatory sentence--or he could have sought a reduction if he had decided that Anderson could have been of substantial assistance to the prosecution. But pleading guilty alone is not enough to get you a reduction of a sentence.

The Anderson case, sadly, is not unique. Thousands of people on the periphery of drug deals have been ensnared in these draconian drug laws. The high school kid paid a few dollars to serve as a look out; the drug dealer’s girl friend enlisted to answer the phone; the grandmother importuned to carry an innocent-looking package as a favor have all been victims of this campaign in the war on drugs. A recent column in the San Francisco Chronicle reports on two cases: Clarence Aaron, a first time non violent offender who because he facilitated two large cocaine deals between two drug dealers was sentenced to life without parol; and Chrissy Taylor who was sentenced to 19 years in prison for buyng legal drugs for her boy friend’s illegal drug operation. They‘ve all been sentenced on the basis of the type and quantity of drugs involved, not the measure of their culpability or other relevant circumstances.

But this campaign has put few if any kingpins behind bars. That is because the distribution of drugs is mostly a street level crime. That is particularly true of crack cocaine which has been the primary target of drug law enforcement and the principal object of mandatory minimum sentencing. Crack dealers hanging out on street corners are easy picking for police and drug enforcement agents. They can keep busy and run up the numbers. And crack offenders, facing long sentences, also make ready snitches to try to get a lesser sentence, often pointing the finger at innocent bystanders. Of course, sometimes the authorities run across large shipments of cocaine or marijuana but generally the persons who get caught are the small fry handling these shipments, not the kingpins who organize them.

Recent law enforcement efforts have also been directed at methamphetamine labs that have sprouted up across the country and are easily assembled. But again the culprits who get caught are mostly the lowly cooks, not the leaders and organizers.

Still, despite the widely acknowledged injustice and ineffectiveness of mandatory minimum sentencing laws, there is no visible support in Congress to repeal or modify them. Far from it, Congress remains enamored of harsh mandatories to prove to their constituents that they are tough on crime. Congress is even now working on legislation that would enact a new round of mandatory minimums for gang related crimes and sexual abuse offenses.

How did we get to the present state of affairs?

II. HISTORY OF PUNISHMENT

In colonial America prisons were unknown. Punishment consisted mostly of fines, whippings, mechanisms of shame such as stocks and the public cage, and banishment. Jails mostly held men awaiting trial or punishment, or those who had not satisfied their debts. The primary purpose of punishment was deterrence. Repeat offenders faced the death penalty. So a Massachusetts statute provided that for a first offense a thief would be whipped; for a second offense he had to pay treble damages, sit for an hour on the gallows platform with a noose around his neck and then be carted to the whipping post for thirty stripes. For the third offense, he would be hanged.

During the Jacksonian period, crime began to be seen as threat to the stability and order of society. The traditional authority of family, school and church was breaking down. Prisons were established by reformers as a means to transform deviants into law abiding citizens. Under the leadership of the Quakers, sentiment also grew to eliminate the cruelty of corporal punishment and the death penalty. The first penitentiary was established in 1829 in Philadelphia. It remained in use until 1970. Its purpose was to rehabilitate offenders by isolation, obedience, a steady routine of labor and bible study. Similar penitentiaries were established throughout the United States.

Following the civil war, the character of prisons changed drastically. Rising crime rates attributed mostly to immigration and urbanization brought massive overcrowding of prisons. Criminal justice systems increasingly dealt with hardened and violent criminals and this caused judges to impose lengthy sentences. Numbers tell the story: between 1840 and 1870, the number of prisoners per 100,000 of population trebled, rising from 24 to 83. (Keep these numbers in mind for later comparison!) The resulting deterioration of conditions of confinement led to chaos, corruption and brutality in prisons, and undermined the ideal of rehabilitation. Early efforts at reform by providing education, training and recreation for inmates failed in the face of overcrowding and under funding.

The twentieth century saw the introduction of various progressive ideas. Inmates were classified according to their offense of conviction and a range of penal institutions was created running from maximum to minimum security. Most important, indeterminate sentences came into use. Under that system, a sentence was imposed with a minimum and maximum term The actual time an inmate would serve was determined by a parole board on the basis of his institutional adjustment and apparent progress toward rehabilitation.

The introduction of progressive ideas into the sentencing scheme collided with other developments that frustrated expectations for them. Among these were heroin, cocaine and later crack cocaine epidemics, the black power movement and growing tensions in the inner cities. These led to increased crime rates from the 1960s on and they in turn hardened criminal justice policies. Indeterminate sentences came to be regarded as a failure.

III. SENTENCING REFORM

Opposition to indeterminate sentences coalesced on the liberal as well as the conservative sides. Liberals wanted short, fixed sentences to reduce the perceived harm of long incarceration and what they saw as discrimination among prisoners in the indeterminate sentence regime. Conservatives, in turn, had no faith in rehabilitation, wanted fixed and lengthy sentences to rein in liberal judges and incapacitate offenders. Both sides pointed to what they saw as disparities in sentencing by different judges, attributed to differences in sentencing philosophy. Some judges, it was argued, routinely imposed the maximum sentence and others the minimum. And some judges were perceived to impose more severe sentences on black defendants.

That there should be differences in the sentences imposed for the same offense in a discretionary system did not mean that different offenders received disparate treatment. Judges were expected to take into account differences among offenders, such as the gravity of the offense, the offender’s role in the offense, the likelihood of reoffending, and other factors bearing on the degree of culpability. Thus there could be legitimate explanations for what appeared to be sentencing disparities but they did not overcome the widespread criticism.

Another ground for criticism of indeterminate sentencing was that the inmate would never know how long he would actually have to serve. Under the indeterminate sentencing system, the parole board not the judge would determine the length of time an inmate would serve based on its assessment of a number of objective and subjective factors, such as the severity of the offense and the inmate’s institutional performance and prospects for rehabilitation. Thus a sentence of five to twenty years would result in the inmate serving a sentence somewhere between the two extremes, generally about a third of the term followed by probation. Some considered it unfair to prisoners that they would not know what their actual sentence would be and they called for truth in sentencing, i.e. that the sentence imposed should be the sentence actually to be served. As a result, probation was largely eliminated, and with it the incentive of inmates to rehabilitate themselves to gain an early release.

The argument over indeterminate sentencing went on in Congress throughout the 1970s. Conservatives argued that too many defendants got light sentences from judges soft on crime. Liberals argued that too many defendants, especially blacks, were sentenced too harshly. The statistics supporting these claims were mushy at best but the perception of sentencing disparity was pervasive. So in 1984 a compromise was reached and Congress adopted the Sentencing Reform act, sponsored by Senators Ted Kennedy and Strom Thurmond.

That act established a Sentencing Commission which after some years of study and research promulgated a system of sentencing guidelines, not to be confused with mandatory minimum sentences. The guidelines were based on a computer analysis of 10,000 sentences imposed by federal courts for a variety of offenses. They reflected the range of sentences imposed for particular crimes under particular conditions; for example what could an armed bank robber with a prior felony conviction expect to get. With these data the Commission created a matrix by which a judge would compute an offense level for the particular offense, taking into account the circumstances of the offense, the defendant’s criminal history and his role in the offense. The offense level gave him a range of permissible sentences from which he could chose. In unusual circumstances, a judge could depart upward or downward but he had to justify it, and the guidelines prohibited taking into account such personalized factors as a defendant’s standing in the community or family circumstances.

The guideline system, although it restricted judicial discretion, was not a bad system. It was possible to work with it to arrive at reasonable sentences. As a footnote, you may have read of the Supreme Court’s recent decision on the constitutionality of the guidelines. The court held that a defendant was entitled under the Sixth Amendment to a jury determination of any fact that affected his sentence under the guidelines. As a result the guidelines are now treated as advisory rather than mandatory, and that will be the law until Congress acts.

IV. MANDATORY MINIMUM SENTENCES.

In June 1986–just before the guidelines were scheduled to take effect-- a basketball star at the University of Maryland named Len Bias died of a drug overdose. A media frenzy resulted, leading to reports that the drug he had used was believed to have been crack cocaine. While cocaine had long been around, crack, a mixture concocted by cooking cocaine, water, and baking soda, had recently begun to appear on the streets. It was not only cheaper than straight cocaine but it was also much more potent.

The reaction to Bias’s death was immediate and dramatic. He had just been drafted by the Boston Celtics, House Speaker Tip O’Neill’s home team. Without hearings or investigation, Congress passed the 1988 Anti Drug Abuse Act, establishing mandatory minimum sentences for drug offenses, overriding for drug offenses the sentencing guidelines established by the Sentencing Commission that were just becoming effective.

The essence of the mandatory minimum sentence law was that the sentence would be calculated solely on the basis of the type and quantity of drug involved, whether it was a repeat offense, and whether a weapon was involved. So if the offense involved 5 kg. of cocaine the defendant had to be sentenced to a term of ten years without regard to the defendant’s role in the offense. An indication of the paranoia infecting the legislative process is that the minimum sentence for crack cocaine was 100 times more severe than the sentence for cocaine--only 50 grams of crack will get you a mandatory 10 year sentence. For a repeat offense, the mandatory minimum is 20 years. No facts bearing on culpability may be considered--the person who gives the drug dealer a ride in his car is as guilty as the drug dealer himself.

Whether intended or not the huge disparity between cocaine and crack sentences under this Act has had a staggering impact on incarceration rates. Cocaine largely involves the white middle class. In contrast crack is sold and used largely in the inner city so crack sentences fall heavily on African Americans. It takes much less effort for law enforcement to sweep up a handful of crack dealers from inner city street corners than to locate and arrest sophisticated cocaine dealers.

You may ask whether mandatory sentences have had the deterrent effect Congress expected? There is no evidence that they have. No one claims that they have made inroads into drug trafficking. One might think that the risk of being locked up for ten years or longer would discourage young men from dealing in drugs. But the truth is that crack offenders are not familiar with the criminal law. My interviews with prison inmates confirmed that they had no idea of the mandatory minimum sentences they faced and never thought about being locked up for many years.

Proponents of mandatory minimum sentences argue that they work to incapacitate drug offenders but there is an inexhaustible supply of potential offenders. That is not to say that drug offenders should not serve appropriate prison sentences but the draconian sentences under existing law have served only to fill the prisons.

V. INCARCERATION AS PUNISHMENT

Our Society’s commitment to incarceration has been unwavering. As a result the rate at which Americans are confined vastly exceeds that of every other country except Russia. Here are some typical rates of incarceration in major countries, per 100,000 of population:

Russia - 690

United States- 600

Belarus - 505

Ukraine - 390

South Africa - 265

China - 103

Western European countries- 100

Japan - 37

India - 24

Over two million Americans are behind bars (the number of inmates exceeds the number of lawyers admitted to practice). Because their sentences keep getting longer--now averaging 30 months--the number of the incarcerated keeps increasing at a rate of about 3% per year. Over 600,000 new inmates are added each year. In addition some 4 million are on probation. In California we are spending more on prisons than on higher education.

And that is not the whole story. Of the Americans behind bars, about 44% are African Americans, vastly disproportionate to the 13% they represent in the general population. Some ten percent of the black population under 40 is incarcerated. Nearly a third of young African-American males is either incarcerated or on probation or parole. A male born in 1991 had a 15% lifetime likelihood of being imprisoned if he was white; if he was black his lifetime likelihood was 30%. African Americans also are arrested, convicted and imprisoned at much higher rates. They constitute 35% of those arrested, 55% of those convicted and 74% of those imprisoned on drug charges.. And this is so even though 76% of all drug users are white and only 14 % African American and 8 % Latino. Statistics such as those, plus their unequal access to legal assistance, have bred pervasive distrust of the justice system among African Americans.

We need to ask whether our commitment to lengthy prison sentences is wise and constructive policy. Incarceration should serve four purposes: deterrence, rehabilitation, retribution and incapacitation. These purposes are all legitimate if wisely administered. Cutting off a thief’s hand certainly serves deterrence and incapacitation; it probably also satisfies the community’s desire for retribution, and in a sense it is rehabilitative--he probably won’t do it again. Yet this is not a punishment we would consider. Still in other ways our approach to punishment is often almost as barbaric. For example, we impose sentences of such length that many prisoners remain incarcerated far beyond the age when they are likely to ever commit another crime. Few persons over the age of thirty-five commit serious crimes. Yet one prison outside Fort Worth is effectively providing a retirement community, with excellent medical care, for aging bank robbers and drug dealers. It would be much more economical to let them out and live on social security and Medicare. We are incarcerating for long terms young people who made one mistake in succumbing to the temptation to make a quick buck selling drugs and whose lives will probably be destroyed. We are incarcerating women whose young children are then left to the tender mercies of the social safety net and likely to go astray.

It is a well-known fact that it costs about as much to house a prisoner for a year as to send him to Harvard. Consider that the state of California spends $7 billion a year on its prison system. It spends over $1billion on prison health care alone yet it is so inadequate that a federal court is about to appoint a receiver for the system. California prisons are critically overcrowded; the population is twice the design capacity. Overcrowding causes serious health and safety problems. And the release of thousands of long-termers into society causes huge social problems.

For the money we spend on incarcerating prisoners for long periods of time, we could do a lot to rehabilitate them, to treat them, to train and educate them and to supervise them outside prison walls. Treatment programs in some states have shown promise. We could spend more on police forces which would do more to prevent crime than massive prison sentences. If we were not so committed to retribution in sentencing, we could impose much shorter sentences, divert some offenders to treatment or alternative sentences, save money, reduce the ill effects of incarceration on offenders and make our communities safer.

That is not to say that there is not a place for lengthy sentences, mainly for violent offenses. But violent offenders represent a very small percentage of the prison population, particularly in federal institutions. And ironically, in state prisons, violent offenders along with others often gain early release because long sentences result in overcrowding requiring a revolving door.

In the case of some crimes lengthy sentences can send a useful message. So the twenty-five year sentence imposed on Bernard Ebbers in connection with the World Com fraud can be expected to reverberate in board rooms.

But it is probably true that the length of sentences is more than anything else the measure of outrage of the community. Retribution in a sense is the substitute for victims taking the law into their own hands. So retribution plays a legitimate role. Yet it must be tempered by a rational sentencing scheme so that the criminal justice system does not become simply the public’s vehicle for vengeance.

Finally, to return to the Anderson case, the case is emblematic of Congress’ distrust of judges. It shows how Congress by allowing prosecutors to determine the sentences for drug offenders has undermined the judicial function, a sad day for a society committed to the rule of law.

William Schwarzer

Jan. 2006