mandatory minimums drive the sentences of even those who aren't given a mandatory minimum

As I read The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options, a report from the Congressional Research Service released January 22, 2013, I see this: 

The number of mandatory minimum penalties in the federal code expanded as Congress made more offenses subject to such penalties. The USSC [United States Sentencing Commission] reported that the number of mandatory minimum penalties in the federal criminal code nearly doubled from 98 in 1991 to 195 in 2011. Not only has there been an increase in the number of federal offenses that carry a mandatory minimum penalty, but offenders who are convicted of offenses with mandatory minimums are being sent to prison for longer periods. For example, the USSC found that, compared to FY1990 (43.6%), a larger proportion of defendants convicted of offenses that carried a mandatory minimum penalty in FY2010 (55.5%) were convicted of offenses that carried a mandatory minimum penalty of five years or more.

While only offenders convicted for an offense carrying a mandatory minimum penalty are subject to those penalties, mandatory minimum penalties have, in effect, increased sentences for other offenders.

More crimes are subject to mandatory minimum sentencing and even those crimes that don't carry a MM are getting longer sentences in order to keep those sentences in proportion to the MMs.

...nearly 30,000 in FY1995 and approximately 80,000 in FY2010 were actually subject to a mandatory minimum penalty.However, over the same time period there was a similar rate of growth in the number of inmates in federal prison who were not convicted of an offense that carried a mandatory minimum. In FY1995, nearly 32,000 inmates in federal prison were convicted of an offense that did not carry a mandatory minimum.This increased 152%, to approximately 80,000 inmates , by FY2010.  (My emphasis.)

Hmmm. My husband was offered a choice of risking the mandatory minimum by going to trial or taking the plea agreement. As so many do, he chose the plea agreement and pled guilty to possession, a felony which doesn't carry a mandatory minimum. 

I would bet the increase in the number of inmates convicted of offenses that don't carry mandatory minimums is a result of defendants accepting similar plea agreements. 

I'll keep reading.

Hat tip:  FAMM.org.

how much can you say in fifteen minutes?

Receiving my husband's first phone call from prison was both joyful and despairing. Joy at hearing his voice, despair over him being far away. He sounded alone and sad and we could do nothing to help him.

In the federal system, phone calls are limited to fifteen minutes. How much can be said in fifteen minutes?

In our first call, we had time for the kids to ask what he wears and what he eats. We learned that the corrections officer (CO) in Reception didn't allow him to keep the CPAP machine he took with him, the machine that enables him to sleep at night. Instead, they gave him a prison-provided CPAP and then put him in a cell that had no outlet for him to plug it in. His second day was spent finding another cell with an outlet he could use.

We learned that the Bible we sent with him, the Bible in which we wrote messages of encouragement, was not allowed, either. The Bible and the CPAP would be shipped back to us.

The CO did tell him that we could send the Bible back to him in the mail, as long as we remembered to write "One book" on the envelope we use to send it.

That was a difficult call. So much to ask, so much to answer; and no time for satisfying anyone.

I try to write down questions for him so I don't waste time trying to dredge my memory for what I thought of earlier in the day. He does the same. Efficiency matters; it leaves more time for other questions, other topics of conversation.

In one phone call, I asked an important question about a business matter; he misunderstood me. I asked again. He tried to answer but had obviously misunderstood again. The noise on his end sometimes prevents him from hearing us clearly so we waste precious minutes clarifying. That time, we had to give up.

There is no time for leisurely discussions about our day, about how the kids are doing in school. No time for long, funny stories from the kids about their friends or the teacher who did something outrageous or the homework that keeps them up late.

No time for the long, rambling discussions about books and what the pastor's sermon was about this week. We save that for letters. Our letter-writing is a delight for both of us. We write pages and pages and enjoy doing it.

His voice, though. It is important to hear his voice as frequently as possible. I can tell when he is sick or worried or afraid. I can tell when he's had a good day and I can tell when he needs to hear me as much as I need to hear him.

Fifteen minutes. That is the longest phone call possible at one time. If he wants to call a second time, his phone system will not allow him to call my number again for another hour.

Fifteen minutes. If we try to stretch the 300 minutes he purchased so that we can talk every day, every phone call needs to be less than fifteen minutes.

Seventy dollars--for 300 phone minutes, the most an inmate can purchase each month--can be a lot of money to find for some families. For them, fifteen minute phone calls or daily phone calls are impossible. How do those families get their questions answered? Questions about filing taxes, about who carries the homeowner's insurance, about how to clean the gutters, about how to make chili the way we all like...

If your husband or wife were suddenly away from home tomorrow and you had to take over their duties at home, what questions would you have?

Think about how many minutes you spent talking with your husband or wife today. Count up all the passing bit of conversation that you don't even count as conversation: Gas prices are up again. Boy, that math teacher hands out crazy-hard assignments! Do we still have hamburger in the freezer? I wish the kids would keep the back seat of the car clean. Your mom's birthday is next week. Add in the conversations over dinner about the city council's latest screw-up and the bedtime conversations about how your brother's wedding is going to be a fiasco. Don't forget to add the minutes you used to text each other about who will pick up the kids after soccer practice and who will pick up milk at the store.

How would you do if you were limited to less than fifteen minutes each day?

Lenore Skenazy at FreeRangeKids links to a story about a man who was mistaken for someone dangerous when he was seen with his little girl.

From his story:

I turn around to see a woman I recognise as the yoga instructor approaching us. She looks concerned. She is not looking at me at all. She is bending down and trying to get my daughter’s attention. “Sweetie, where’s your Mum? Where’s Mummy, sweetie?”

Later, he says,

We are constantly informed of how much evil exists is in the world. We are bombarded with horrendous stories of child abuse, abduction, murder; you name it. We get it from those who report fact and we get it from those who create fiction. I feel like we’ve never been made more aware of the capacity for people to be horrible creatures. 

I can’t presume to know what motivated that yoga instructor to do what she did. Maybe her actions were fuelled by paranoia. Maybe she’s been convinced to believe that a man on his own taking a little girl’s hand has as much chance of being a paedophile as he does of being her father. Maybe it was just blind instinct. I don’t know. I don’t care. I choose to stand and applaud her, because I believe what she chose to do was the right thing; was good.

After a stranger assumed he was a danger to the child, the man decided the stranger was right to assume that he was someone who would harm the child instead of assuming the child was happy to be with her father. I wonder if this man would be as understanding if the woman had called the police about him instead of following him herself. I have a hunch that his name and photo in the newspaper and a night in the clink would have elicited a different response from him. Lucky for him, she didn't call the cops.

In the comments at FreeRangeKids, some commenters agree with him. Good for that woman, they say, for taking action, for not being afraid to protect this little girl. Better safe than sorry. 

If the child had been in danger, I would agree with them. As it was, the woman jumped to a conclusion with no evidence to support it.

The man said, "I feel like we’ve never been made more aware of the capacity for people to be horrible creatures." And that's why we are where we are, with the word "pedophile" sprinkled through the comments like salt on french fries. A man with a child is seen as a danger, and not just any danger: it is understood that the danger is that he's a pedophile, though that word appeared nowhere in the original story.

My comment at FRK:

When did we all start thinking that sex with toddlers is a common happening? Isn’t that what people mean when they use the word “pedophile”? There is something wrong with pedophiles, true. But isn’t there also something twisted when other people automatically think about sex when they see toddlers? Or are people using the word “pedophile” without thinking of its real meaning? 

Pedophilia is a psychological diagnosis. It doesn’t refer to every man who thinks the high school cheerleaders are fun to watch and it doesn’t refer to every man who looks at child porn. No, really, it doesn’t. (Looking at pictures is creepy and indicates some real problems but it does not automatically get a guy diagnosed as a pedophile.) 

And especially, it doesn’t refer to every man.

effect of prison on families, or, families share the sentence

Federal prisons provide a commissary, a sort of convenience store, where inmates can make purchases. Snacks and other food items are a popular item for inmates who yearn for something other than the cafeteria food.

My husband's first purchases included underwear, not candy or Taster's Choice instant coffee. Other common purchases include thermal underwear (it gets cold where my husband is), over the counter medications, pads of paper and envelopes. Pads of paper were not available one week. My husband was unable to buy stamps in his first visit to the commissary because he couldn't be late for his next appointment and the line was too long. He had to wait until the following week for stamps.

We had to wait another week for a letter from him.

The inmate can purchase up to 300 phone minutes per month, which cost about $70. He can purchase up to 20 stamps at a time.

When I say, "the inmate can purchase," remember that the inmate came to the prison without any money. They are not allowed to bring money because cash enables a black market. The families provide this money...the same family that is doing without the income the inmate used to bring home.

The family, short one income, perhaps all income, must send money to the inmate if they want to receive letters from him or to receive phone calls from him.

It is easy to say that prisoners don't deserve luxuries like thermal underwear or Taster's Choice. But it is cruel to make it difficult for prisoners to communicate with their family and friends. Not only is it cruel to the prisoner, it is cruel to the family, as well.

Think of your own family and how important communication is. The kids need to hear Dad's voice, Mom needs to ask Dad where he filed important papers. Our family had a lot of time between finding out that he would go to prison and the day he surrendered himself at the prison but many families lose someone to the prison system with no warning at all.

For some families, it is a struggle to send money to the inmate, making it difficult to keep in touch. Before our own encounter with the justice system, I had no idea that families sent money to prisoners for very ordinary expenses: stamps, phone minutes.

judicial whining and finger-pointing

What's a judge to do?

 My passion for justice was hard-wired into my DNA. Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release.

Judge Mark W. Bennett writes in The Nation about his part in sending Iowans to prison--for years and decades--for their non-violent crimes.

Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.

Good on you, Judge, for visiting prisoners and convincing yourself that since the sentence you handed down worked out well for some, perhaps you're not the bad guy you feared.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

Judge Bennett shows real compassion for the children and families severely affected by the mandatory minimum sentences but did he stop signing search warrants that would send armed men into the homes of those families when the children were home? 

I wonder at what point in those nineteen years the good Judge came to the realization that mandatory minimum sentencing is wrong. Did he know right away that it was wrong? Did he continue sentencing defendants to the mandatory minimum for nineteen years or only a dozen or so? Or did his realization come immediately before writing the opinion piece? 

What could he have done? Judge Bennett provides his own answer in the comments after his article:

I understand why some of you are labeling me a coward. But there is a lapse of "critical thinking" here. I took an oath to uphold the Constitution and the laws of the United States when I was sworn in. Federal judges cannot substitute their personal opinions and refuse to apply valid laws passed by Congress. If we did our legal system would be replaced by anarchy. Our Nation operates under the rule of law. Higher courts have upheld the constitutionally of mandatory minimum sentencing and no defendant before me has ever raise a legal challenge to them. They are not illegal but IMHO unwise. Only Congress can change them..that's not a copout it's the law !!!!! So for Pope Pisius [another commenter] to accuse me of fake heroism and fake concern is unfair. And yes, RoundAbout federal judges have to apply valid laws passed by Congress. We can't willy nilly enforce only laws we personally agree with. 

So he was just doing his job...to prevent anarchy. The defendants walked willingly onto the trains. Here's an idea, Judge Bennett: You could have instructed jurors on their duty to decide if the law was properly applied in the case before them. Imagine if you had begun doing that nineteen years ago! How many of those 1,092 defendants would have benefited? And if you didn't want to do that yourself, you could have allowed defense attorneys to do it.

Many people across the political spectrum have spoken out against the insanity of mandatory minimums. These include our past three presidents, as well as Supreme Court Justices William Rehnquist, whom nobody could dismiss as “soft on crime,” and Anthony Kennedy, who told the American Bar Association in 2003, “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences.” In 2005, four former attorneys general, a former FBI director and dozens of former federal prosecutors, judges and Justice Department officials filed an amicus brief in the Supreme Court opposing the use of mandatory minimums in a case involving a marijuana defendant facing a fifty-five-year sentence. In 2008, The Christian Science Monitor reported that 60 percent of Americans opposed mandatory minimums for nonviolent offenders. And in a 2010 survey of federal district court judges, 62 percent said mandatory minimums were too harsh.

Three presidents, four former attorneys general, a former FBI director, dozens of former prosecutors, judges...blah, blah, blah. Did any one of them do anything more than talk about how awful the mandatory minimum sentences are? 

Did any of the three presidents put forth bills to abolish the MMs? Did the FBI director put out the word to stop executing search warrants SWAT-style or home invasion-style? Did the prosecutors stop using the MMs to pin defendants between a rock and a hard place? 

I would guess that, just like Judge Bennett, they did not.

more U.S. attorneys, less time spent in court

Hmmm. 

In 1989, the 2,632 U.S. attorneys spent 947,000 hours in court-related work.

In 2010, the 6,075 U.S. attorneys spent only 596,000 hours in court-related work.

I am not quite sure what to make of these numbers except to connect them to this:

Guilty pleas last year resolved 97% of all federal cases that the Justice Department prosecuted to a conclusion. That is up from 84% in 1990. During that period, the number of federal defendants nearly doubled amid a crackdown on crimes ranging from drug trafficking to fraud, while the number going to trial fell by nearly two-thirds.

When mandatory minimum sentencing lets prosecutors force the defendant to choose between the very, very long sentence probable if he goes to trial and the very long sentence offered in a plea agreement, few defendants go to trial. No trial, less court-related work.

Those numbers start to make sense except I don't know how to explain the huge increase in the number of U.S. attorneys. Unless the phrase "gravy train" helps.

power over others

The knowledge that someone has  power over you and your family is terrifying and when you find yourself in that position unfairly, the terror level is especially high. Guilt and innocence have little to do with the unfairness of it. Prosecutors have all the power to decide if they want a person in prison or not, and nothing can stop them. So, from the very beginning, we are powerless, defenseless. Sending a family member to prison means they are again powerless, defenseless--and without even the comfort of loving touch or familiar faces.

America builds more and more prisons (15 federal facilities opened in the last twelve years) and incarcerates more and more citizens, requiring more and more prison guards. Most people recoil at the idea of working as a prison guard and yet there is always someone who will do the job, no matter how many guards are needed. As of 2000, there were 270,317 custody/security staff in federal, state, and private adult facilities.

What happens to a person who is given physical power over others? If power corrupts, it cannot be good that we are putting an increasing number of people in positions of physical power over others.

can you go to prison for enticing an undercover FBI agent?

An Alabama judge threw out an Internet sting case because there was no actual child victim. A 50-year-old man made an Internet connection with someone he thought was a 15-year-old girl. Instead, he was conversing with an FBI agent. The judge's order:

Specifically, there was no actual "victim"; a thirty-seven (37) year old male undercover FBI agent was the actual person who interacted with the Defendant during the course of the investigation and at all times was the individual with whom the Defendant interacted making the basis of the allegations here.

This makes sense to me. How can we convict someone of enticing a minor if there is no minor involved? The defendant imagines that he is interacting with a child but there is no child. 

An interesting twist to the story: the defendant is also a prosecutor. There are many men already doing years of prison time who were nabbed in stings like this; presumably, none of them are also prosecutors. Is it possible that this particular prosecutor/defendant received special consideration from the judge?

Surely this cannot be the first time the defense has argued that there was no actual child involved. It will be interesting to see if the argument works in other cases.

prosecutors gain enormous power from mandatory minimum sentencing

Mandatory minimum sentencing gives prosecutors nearly absolute power to convict. Reason's Jacob Sullum writes about a drug offender caught between the mandatory minimum and a plea agreement but sex offenders are treated the same.

Stretching Williams' sentence from mindlessly harsh to mind-bogglingly draconian, each of those marijuana counts was tied to a charge of possessing a firearm during a drug trafficking offense, based on guns at the Helena grow operation that Williams supervised and at Flor's home in Miles City, which doubled as a dispensary. Federal law prescribes a five-year mandatory minimum for the first such offense and 25 years for each subsequent offense, with the sentences to run consecutively. 

Consequently, when Williams was convicted on all eight counts, he faced a mandatory minimum sentence of 80 years for the gun charges alone, even though he never handled the firearms cited in his indictment, let alone hurt anyone with them. This result, which federal prosecutors easily could have avoided by bringing different charges, was so absurdly disproportionate that U.S. Attorney Michael Cotter offered Williams a deal 

Drop your appeal, Cotter said, and we'll drop enough charges so that you might serve "as little as 10 years." No dice, said Williams, still determined to challenge the Obama administration's assault on medical marijuana providers. But when Cotter came back with a better offer, involving a five-year mandatory minimum, Williams took it...

Chris Williams' biggest mistake was in choosing to go to trial. Three of his partners in his marijuana operation were also convicted though they chose not to go to trial.

Tom Daubert, one of Williams' partners in Montana Cannabis, which had dispensaries in four cities, pleaded guilty to maintaining drug-involved premises and got five years of probation. Another partner, Chris Lindsey, took a similar deal and is expected to receive similar treatment. Both testified against Williams at his trial last September. 

Sentencing guidelines allow for a more favorable sentence if a defendant provides "substantial assistance" to the prosecutor. Daubert and Lindsey did that by testifying against Williams. 

The fourth defendant?

Williams' third partner, Richard Flor, pleaded guilty to the same charge but did not testify against anyone. Flor, a sickly 68-year-old suffering from multiple ailments, died four months into a five-year prison term.

These men were also caught between state laws, under which their business was legitimate, and federal law where it was not.

Keep in mind that this happens routinely. Prosecutors can use the mandatory minimums as leverage, putting nearly anyone in prison. Few cases go to trial; defendants take the plea in the vast majority of cases. Because most cases don't go to trial, prosecutors rarely have to prove their case.

another wife; another story

I admire this woman. She posted her story on Reddit as an IAMA piece. She begins:

IAM the wife of a man who plead guilty to possession of child pornography. Even though he is guilty, I am choosing to stay married to him. AMA.

"AMA" means "ask me anything", and the Reddit readers do. Her answers are candid, fascinating. It is quite long but worth reading.