 May
29, 2006 - Charlotte Observer (NC)
Federal Judge Raps Rules On Sentencing
Mullen Says Guidelines Give Prosecutors Too Much Power
By Gary L. Wright
Graham Mullen has sent hundreds of black men, mostly young
and mostly convicted for drugs, to prison. The federal judge
in Charlotte hasn't liked it. "I'm tired of sentencing young
black men to prison," Mullen said during a recent interview.
The 66-year-old judge doesn't intend to do that much longer.
Mullen, a judge in Charlotte and the Western District of North
Carolina for 16 years, has taken senior status. That's a move
akin to semi-retiring but one that allows him to continue working
at a reduced pace. It means President Bush will be able to nominate
a replacement. Mullen, who earns $165,200 a year, is no longer
accepting cases that will require him to put anyone behind bars.
Once he disposes of the more than 150 criminal cases already
assigned to him, he'll focus on civil litigation.
Mullen has contempt for the federal sentencing guidelines,
which he believes have given prosecutors more power than judges
in deciding punishments. He once said the guidelines, designed
by Congress in the 1980s to make prison terms tougher and more
uniform, would "gag a maggot." Even though the U.S.
Supreme Court last year abandoned years of federal sentencing
practices, they are still in place as advisory guidelines. Mullen
doesn't shy from speaking out about what he perceives as injustices.
He's told federal prosecutors they have a reputation of being
arrogant bullies. And he's refused to accept plea bargains that
force criminal suspects to give up their rights to appeal.
"Judge Mullen is his own man," Charlotte lawyer
James Wyatt said. "He does not care about doing anything
other than what he believes is right and fair. That doesn't always
make everyone happy, and it shouldn't." The judge's critics
say he can sometimes seem hostile toward prosecutors. "He's
a bright guy and he's capable of doing very well. But he can
manipulate the law to suit his purposes," said one former
prosecutor, who didn't want his name attached to comments critical
of a federal judge. "He sometimes ignores or bends the law."
Mullen said his differences with prosecutors stem from his
desire to even the playing field between them and criminal suspects.
Mullen and then-First Assistant U.S. Attorney Kenneth Bell have
had their share of courtroom battles.
The most highly publicized involved former heavyweight boxing
champion Riddick Bowe, who in 1998 was accused of abducting his
estranged wife from her Cornelius home and transporting her and
their children across state lines into Virginia.
Bowe pleaded guilty to interstate domestic violence in a deal
with prosecutors that called for him to serve 18 months to two
years in prison. But Bell and Mullen went round and round in
Bowe's sentencing. The judge, despite the plea bargain calling
for prison time, twice gave Bowe sentences that allowed him to
avoid prison. And twice, the U.S. 4th Circuit Court of Appeals
overturned the sentence and ordered Mullen to resentence Bowe.
Mullen eventually sentenced Bowe to 18 months in prison.
Mullen talked recently for the first time about why he kept
allowing Bowe to avoid prison. The judge said he takes domestic
violence seriously but questions whether Bowe should have been
prosecuted.
"He's a proud man who was told by his mother-in-law that
a real man would go down there and get his wife and family and
bring them back," Mullen said. "And that's what he
did."
"Judge Mullen and I have had our battles over the years,"
Bell said. "Sometimes I was able to persuade him what the
law was, sometimes not. But I think most attorneys and defendants
believe they were treated fairly in his courtroom."
Charlotte lawyer Pete Anderson, a former federal prosecutor
who also was Mullen's law clerk in the early 1990s, called his
former boss "a great teacher, a wonderful mentor and a true
friend."
As a law clerk, Anderson said Mullen taught him the importance
of credibility. As a prosecutor, the judge reminded him about
exercising sound judgment, mercy and restraint. And as a defense
lawyer, the judge inspired him to remain ever-vigilant in protecting
his clients. "He has that rare ability to temper justice
with mercy," Anderson said. "That's my kind of judge."
In 2003, Mullen surprised many in the legal community by announcing
he would no longer accept most plea agreements. He said the agreements,
which forced criminal suspects to give up their rights to appeal,
were unconscionable. A few months later, prosecutors and defense
lawyers reached a compromise that gave defendants more rights
to appeal.
As the keynote speaker at a 2002 U.S. Attorney's Office retreat
in Boone, Mullen's bluntness shocked and angered prosecutors.
He told prosecutors never to lie or shade the truth. "A
lying law enforcement officer," he warned, "is as much
a slime dweller as any criminal defendant." The judge said
prosecutors have so much unchecked power that there's a temptation
to use it to bulldoze. "Don't run over people just because
you can," he said.
Mullen knew his talk would anger prosecutors. "The message
I was trying to get across was 'beware of Lord Acton's axiom
that power tends to corrupt. And absolute power tends to corrupt
absolutely,' " the judge said. "There are judges who
ought to get that same message." Mullen's biggest frustration
has been how the sentencing guidelines took away judges' power
to impose what they believe are fair punishments. "These
sentencing guidelines weren't guidelines at all," the judge
said. "They were mandated sentences. Sentencing required
no judicial exercise."
Mullen has complained before that following the guidelines
meant he had to send blacks to prison for decades for crimes
involving crack cocaine. He pointed out that those crimes carry
tougher penalties than powder cocaine and that many blacks are
charged with crack cocaine crimes. "The drug laws of this
nation are draconian," Mullen said. "Sentences have
had a disproportionate impact on young black men.
"I've sent too many black men to prison for 20 or 30
years or life. As a judge, I had no power to do anything other
than what was called for in the sentencing guidelines."
Mullen wrote the preface for the Georgetown Law Journal's
2004 Annual Review of Criminal Procedure. He didn't hide
his scorn for the sentencing guidelines.
"I will retire from the field soon," he wrote, "as
I can no longer stomach the gross injustices I am required to
announce. Senior status beckons in the near future and offers
the ability to avoid criminal cases."
Talking Tough to Prosecutors
Graham Mullen, nominated to the federal bench in 1990 by the
first President Bush, is known for his outspokenness. He had
some blunt warnings for prosecutors at a 2002 U.S. Attorney's
Office retreat: On pursuing convictions in court: "If you
define excellence as prosecuting every case that passes through
your quality screen pursuing a win-a-conviction-at-all-cost and
a maximum sentence, then we have a conceptual cognitive dissonance."
On how federal prosecutors are perceived: "Your office
is perceived as acting like arrogant bullies who over-indict,
always believe snitches, threaten defendants who seek release
on bond, always seek to get the max and go for the jugular."
On federal sentencing guidelines: "I am only performing
a ministerial function -- indeed only slightly more than a clerical
function at sentencing. Frankly, the sentencing guidelines would
gag a maggot. ... You now determine the sentence. Not me. Your
power has become all but absolute."
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