Back when I was a young federal defender, I carried with me a thick book, the Federal Sentencing Guidelines Manual, in which every federal crime was assigned a point value. (It was around six hundred pages and weighed about as much as a brick of cocaine with a street value of twenty-seven grand.) The point value for drug crimes was determined by consulting the “Drug Quantity Table.” The box of methamphetamine carried by my client weighed at least three kilograms, which carried a “Base Offense Level” of 36. The back half of the book contained adjustments for things like “Role in the Offense” and “Acceptance of Responsibility” (pleading guilty). The chapter on criminal history added points for every prior offense. Among the first things I did with every client was to add up the points of his crime and his criminal history, and then flip to the back page of the book, to a table that calculated exactly what sentence he could expect to receive. My client in the methamphetamine case had no criminal history at all, so his Base Offense Level was not adjusted higher for that. Still, because of the sheer quantity of the drugs in the box he had carried, he was subject to a sentence of between 188 and 235 months.
This systematized approach to sentencing is certainly rational. There should be consistency in sentencing; a defendant’s future should not depend on how the judicial assignment wheel is spun.*3 However, the idea that nothing about my client’s personal situation could make an impact on his sentence was infuriating. Here was a man who was of such limited intelligence that years ago he would have been called mentally retarded. He was set up by a wily, sophisticated informant who had purposely packed the box with enough drugs to trigger the massive penalty. What justice would be served by sentencing my client, who was a danger to no one other than himself, to more than fifteen years in jail?
Moreover, the Sentencing Guidelines and mandatory minimums have failed to accomplish their stated goals. True, they removed judicial discretion from the federal system, but there has been no reduction in bias. All that’s happened is that the bias of jurists with sufficient experience and, at least theoretically, wisdom to be appointed to the bench, has been replaced with that of prosecutors, who now determine, via their charging documents, what sentence a defendant faces. We have saved the system from the perils of the personalities of individuals appointed by the president and confirmed by the U.S. Senate and turned it over to the personalities of ambitious young lawyers, many of them right out of law school, and many of them perfectly incubated examples of wealth and privilege.
Things have improved somewhat since I was in practice. In 2005, the Supreme Court, in a case called United States v. Booker, ruled that the guidelines were not mandatory but advisory, and that judges can depart from the calculations if they so choose, though these departures still have to be “reasonable.” The Fair Sentencing Act of 2010 made changes to the mandatory minimum laws that might have allowed the judge in my client’s case to consider factors that could have mitigated his sentence, though the bulk of that law applies to crack cocaine, not methamphetamine. But back when I was taking my client’s case to trial, the judge had no discretion at all. Her sole job after the determination of guilt or innocence was to do some arithmetic and apply the sentence required by the answer.
We had had an excellent entrapment defense. I had assembled a mountain of evidence against the informant, a vicious and loathsome man with a history of entrapping first-time offenders, none of whom had ever committed crimes before he encouraged them to do so. My client had no criminal record, and was found by the government’s own expert witness to have an IQ of approximately 85, significantly below average. I was confident that I was going to win, so confident that when the assistant U.S. attorney called me the afternoon before trial, and asked me what I would have settled the case for had he initially offered a plea different from the Sentencing Guidelines range, I said, “Nothing more than two phone counts.”
A phone count is courthouse jargon for the offense of using a communications device in the commission of a crime. The maximum statutory penalty is four years. My client spoke to the informant a number of times over the phone. Those calls were recorded. If he were charged with communication crimes rather than with drug distribution, though the Sentencing Guidelines sentence would still be determined by the quantity of the drugs at issue in the case, the sentence would be capped at four years for each phone count. If my client pled guilty to those two counts, the judge would have no choice but to sentence him to a maximum of eight years instead of the fifteen to nearly twenty he was looking at.
The AUSA said, “Plead now, tonight, and you can have your two phone counts.”
I said, “Did I say two? I meant one.”
“I’ll give you two. Take it or leave it.”
I faced a terrible dilemma. If I won at trial, my client would not go to prison. If I lost, he’d spend at least fifteen years in jail, and perhaps closer to twenty. Moreover, even if I won, he would still be facing detention and deportation for entering the country illegally. He could even have been prosecuted for that offense. The AUSA was offering my client eight years. After eight years, you have something of a life left to you. Your children are still children. After fifteen or twenty years? What and who remains?
Today, with the benefit of age and experience, I wish I had refused the deal. But I was young, I was scared, this was Orange County, and my client was an undocumented Mexican immigrant. Juries from notoriously conservative Orange County were not sympathetic to the people they called “illegals.” It was, of course, my client’s decision, but his intellectual capacity was profoundly diminished. He would do whatever I told him to do.
It was evening by the time I made my decision. The judge had stayed at work late to hear the plea. We stood in the temporary quarters of the Federal District Court, a grim, windowless, modular portable. The judge began the plea colloquy. She asked me if I had represented my client to the best of my ability, if I supported his decision to take the plea, if the law supported the plea. My voice shook as I affirmed each element, and I started to cry. By the end I could barely speak. My client put his arm around my shoulders. Facing eight years in prison, he comforted me.
Afterward, as I walked through the dark night to the parking lot, a car pulled up next to me. The window glided down. From inside, the judge called my name.
“There’s something I want you to know,” she said.
Having just been yelled at by my boss for breaking down in court, I braced myself for more criticism.
“There are some things,” she said, “that are worth crying about.”
Her window slid up and she rolled away.
* * *
*1 ?As anyone who’s seen coverage of a Donald Trump rally can attest.
*2 ?See http://www.naacp.org/?pages/?criminal-justice-fact-sheet. Another shocking statistic from the NAACP: “African Americans represent 12% of the total population of drug users, but 38% of those arrested for drug offenses, and 59% of those in state prison for a drug offense.”
*3 ?In some jurisdictions, including the one in which I practiced, a literal wheel was spun to determine court assignments.
Day 9
Normal Day
Physical Sensations: None.
Mood: Calm and content.
Conflict: None.
Sleep: Decent night’s sleep.
Work: Productive.
Pain: Minor.