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Opinions of Judges
 September
12, 2004 - The Sioux City Journal (IA)
Congress Should Reconsider Federal Sentencing Guidelines
By Donald E. O'Brien, senior judge for the United States
District Court, Northern District of Iowa
I have been a Federal Judge for 26 years and have had the
misfortune of sentencing many low-level drug offenders to long
prison terms.
I feel compelled to respond to the op-ed, "Mandatory
Minimum Sentence Laws Keep Crime Down," featured in The
Journal recently, written by United States Attorney Charles W.
Larson Sr. Under Canon 4 of the "Code of Conduct For United
States Judges," a judge may speak, write, and participate
in activities concerning the law, the legal system, and the administration
of justice.
Mr. Larson's article starts out by saying that, "The
'tough' sentencing laws promulgated by Congress, including mandatory
minimum sentences, have dramatically increased the safety of
our citizens." He cites no authority for that premise because
there is none. His conclusion lacks support.
The "drug war" started many years ago and has not
been won. Here in Iowa, it is quite a bit worse than it used
to be. These are the same years since the tough sentencing laws
started.
Mr. Larson's op-ed piece says that, "The tough sentences
and mandatory minimum sentences are used for particularly dangerous
crimes such as preying on children (I have had just one case
like that in all my years as a judge) ... these tough sentences
ensure that the worst criminals stay behind bars and that this
makes would-be offenders think twice about risking long-term
sentences." The trouble with that conclusion is that it
does not include drug addicts who can't control their actions.
In our Court, we see few "violent" defendants who
could be classified as "worst criminals." It is particularly
spurious that he concludes the federal sentencing policy is responsible
for the 30-year low in America's crime rate; because in 2000,
just 6 percent of the 984,000 felony convictions nationwide were
in federal court. Mr. Larson says that, "Congress has enacted
provisions that exempt low-level, non-violent drug offenders
from mandatory minimum sentences." This is called the "safety
valve" provision.
The Department of Justice is very aggressive in trying to
block anyone who might profit by the "safety valve"
situation.
In U.S. v. Langmade, Judge Manguson of Minnesota encountered
a situation he could not stomach.
Langmade was in court for conspiracy to manufacture methamphetamine,
which calls for a 120-month mandatory minimum sentence, unless
she could show she was eligible for the "safety valve"
because of her lack of a previous criminal record.
Years earlier, she had issued two bad checks in the amounts
of $45 and $38.50. She pled guilty and received one year of probation.
Had Langmade received just one day less of probation, no criminal
history points would have been counted against her. Langmade
then would have been eligible for the "safety valve."
Judge Magnuson decided that it was unfair to increase her sentence
from 70 months to 120 months just for those two, small, bad check
convictions. He sentenced her to 70 months.
The government appealed. During the appeal, Langmade's attorney
attempted to get the two check convictions expunged.
The government persuaded the state judge to deny the motion
to expunge.
The Eighth Circuit vacated the decision, and told Magnuson
to re-sentence her to 120 months; he wouldn't do it saying: "
(A) sentence of 10 years imprisonment under the circumstances
of this case is unconscionable and patently unjust.
Upon resentencing, Langmade will be sacrificed on the altar
of Congress' obsession with punishing crimes involving narcotics.
This obsession is, in part, understandable, for narcotics
pose a serious threat to the welfare of this country and its
citizens.
This is one case in which a mandatory minimum sentence clearly
does not further the ends of justice.
Seventy months' imprisonment is more than adequate to punish
Langmade"
Another judge then sentenced her to 120 months.
The only way a defendant can be sentenced below a mandatory
minimum is if the government files a section 3553 motion saying
the defendant has given substantial assistance to the government
in prosecuting other people. This motion is seldom filed.
Mr. Larson's piece says, "the tough sentences are working
because last year 61,000 defendants in the United States admitted
that they committed crimes to get money to pay for drugs."
The facts that we see, usually from people under 25 are that:
A friend got me to try it. I loved it. I became an instant addict.
I spent all my money on drugs. I sold my car. I ran out of
assets.
My drug dealer said, "You get no more unless you want
to sell drugs for me." Since I was an addict and had to
have it, I had no choice.
I started selling so that I could keep getting my daily drugs.
Drugs have ruined my life.
Under the mandatory minimum law, our Courts often must put
these addicts in prison for 10 to 15 years.
The Larson piece goes on to say that the case of U.S. v. Yirkovsky,
259 F.3d 704 (8th Cir. 2001), which arose in the Northern District
of Iowa, is not a case that people should be using as a bad example
for long sentences.
Yirkovsky was living with Edith Turkington at her home. Instead
of paying rent, Yirkovsky agreed to lay new carpeting in the
living room. Yirkovsky found a .22-caliber round of ammunition
under the old carpet. Yirkovsky put the round in a small box
and kept it in "his" room. Subsequently, Turkington
and Yirkovsky had a falling-out. The police were called.
During the search, the police found the .22 round. Yirkovsky
was indicted for being a three-time felon in possession of ammunition.
The mandatory minimum penalty for this violation cannot be less
than 15 years and cannot be suspended.
The judge had no choice but to give Yirkovsky 15 years.
Yirkovsky appealed; Yirkovsky's appeal was denied.
Larson's piece says that this result was appropriate under
the circumstances. The Eighth Circuit Court of Appeals assessed
the matter differently than Mr. Larson. They say in footnote
four, "In our view Yirkovsky's sentence of fifteen years
is an extreme penalty ... However, as we state above, our hands
are tied in this matter by the mandatory minimum sentence which
Congress established" U.S. v. Yirkovsky, 259 F.3d 704 (8th
Cir. 2001) .
This group of distinguished jurists, most of whom are considered
to be conservative jurists, found Larson's conclusion, that the
sentence was appropriate, was dead wrong.
Justice Anthony M. Kennedy of the Supreme Court of the United
States, unlike Mr. Larson, has recognized the problems involved.
In a speech to the American Bar Association, Justice Kennedy
stated that, "Prisoners who have violated the law must be
punished to vindicate the law, to acknowledge the suffering of
the victim, and to deter future crimes."
Justice Kennedy further stated, "The nationwide inmate
population today is about 2.1 million.
In countries such as England, France, Italy, and Germany,
the incarceration is about one in 1,000 persons. In the United
States, it is one in 143. When it costs much more to incarcerate
a prisoner than to educate a child, we should take special care
to ensure that we are not incarcerating too many persons for
too long. Our resources are misspent, our punishments are too
severe, our sentences are too long. The Federal Sentencing Guidelines
should be revised downward.
In too many cases, mandatory minimum sentences are unwise
and unjust."
Congress should not follow the Department of Justice's position
as set out by Mr. Larson. Congress should seize this opportunity
to reconsider sentencing guidelines and mandatory minimums and
strive to achieve the fundame ntal standards of fairness and
effectiveness in our nation's court systems that are so sorely
lacking.
I have done nothing more than set out quotes by Judge Magnuson
and the Eighth Circuit Court of Appeals, a group who are looked
upon, for the most part, as conservatives. I have also quoted
Justice Kennedy of the United States Supreme Court who was appointed
by the late President Ronald Reagan. Please remember these are
quotes from fine judges that come to conclusions directly opposite
those of Mr. Larson's op-ed piece.
Donald E. O'Brien is a senior judge for the United States
District Court, Northern District of Iowa.
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