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.