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Against His Better Judgement

Source:  Eli Saslow, Washington Post, June 6, 2015

SEE ALSO:  What about the prosecutors’ role in mandatory sentences?


They filtered into the courtroom and waited for the arrival of the judge, anxious to hear what he would decide. The defendant’s family knelt in the gallery to pray for a lenient sentence. A lawyer paced the entryway and rehearsed his final argument. The defendant reached into the pocket of his orange jumpsuit and pulled out a crumpled note he had written to the judge the night before: “Please, you have all the power,” it read. “Just try and be merciful.”
U.S. District Judge Mark Bennett entered and everyone stood. He sat and then they sat. “Another hard one,” he said, and the room fell silent. He was one of 670 federal district judges in the United States, appointed for life by a president and confirmed by the Senate, and he had taken an oath to “administer justice” in each case he heard. Now he read the sentencing documents at his bench and punched numbers into an oversize calculator. When he finally looked up, he raised his hands together in the air as if his wrists were handcuffed, and then he repeated the conclusion that had come to define so much about his career.
“My hands are tied on your sentence,” he said. “I’m sorry. This isn’t up to me.”
How many times had he issued judgments that were not his own? How often had he apologized to defendants who had come to apologize to him? For more than two decades as a federal judge, Bennett had often viewed his job as less about presiding than abiding by dozens of mandatory minimum sentences established by Congress in the late 1980s for federal offenses. Those mandatory penalties, many of which require at least a decade in prison for drug offenses, took discretion away from judges and fueled an unprecedented rise in prison populations, from 24,000 federal inmates in 1980 to more than 208,000 last year. Half of those inmates are nonviolent drug offenders. Federal prisons are overcrowded by 37 percent. The Justice Department recently called mass imprisonment a “budgetary nightmare” and a “growing and historic crisis.”
Politicians as disparate as President Obama and Sen. Rand Paul (R-Ky.) are pushing new legislation in Congress to weaken mandatory minimums, but neither has persuaded Sen. Charles E. Grassley (R-Iowa), who chairs the Senate Judiciary Committee that is responsible for holding initial votes on sentencing laws. Even as Obama has begun granting clemency to a small number of drug offenders, calling their sentences “outdated,” Grassley continues to credit strict sentencing with helping reduce violent crime by half in the past 25 years, and he has denounced the new proposals in a succession of speeches to Congress. “Mandatory minimum sentences play a vital role,” he told Congress again last month.
But back in Grassley’s home state, in Iowa’s busiest federal court, the judge who has handed down so many of those sentences has concluded something else about the legacy of his work. “Unjust and ineffective,” he wrote in one sentencing opinion. “Gut-wrenching,” he wrote in another. “Prisons filled, families divided, communities devastated,” he wrote in a third.
And now it was another Tuesday in Sioux City — five hearings listed on his docket, five more nonviolent offenders whose cases involved mandatory minimums of anywhere from five to 20 years without the possibility of release. Here in the methamphetamine corridor of middle America, Bennett averaged seven times as many cases each year as a federal judge in New York City or Washington. He had sentenced two convicted murderers to death and several drug cartel bosses to life in prison, but many of his defendants were addicts who had become middling dealers, people who sometimes sounded to him less like perpetrators than victims in the case reports now piled high on his bench. “History of family addiction.” “Mild mental retardation.” “PTSD after suffering multiple rapes.” “Victim of sexual abuse.” “Temporarily homeless.” “Heavy user since age 14.”
Bennett tried to forget the details of each case as soon as he issued a sentence. “You either drain the bathtub, or the guilt and sadness just overwhelms you,” he said once, in his chambers, but what he couldn’t forget was the total, more than 1,100 nonviolent offenders and counting to whom he had given mandatory minimum sentences he often considered unjust. That meant more than $200 million in taxpayer money he thought had been misspent. It meant a generation of rural Iowa drug addicts he had institutionalized. So he had begun traveling to dozens of prisons across the country to visit people he had sentenced, answering their legal questions and accompanying them to drug treatment classes, because if he couldn’t always fulfill his intention of justice from the bench, then at least he could offer empathy. He could look at defendants during their sentencing hearings and give them the dignity of saying exactly what he thought.
“Congress has tied my hands,” he told one defendant now.
“We are just going to be warehousing you,” he told another.
“I have to uphold the law whether I agree with it or not,” he said a few minutes later.
The courtroom emptied and then filled, emptied and then filled, until Bennett’s back stiffened and his robe twisted around his blue jeans. He was 65 years old, with uncombed hair, a relaxed posture and a midwestern unpretentiousness. “Let’s keep moving,” he said, and then in came his fourth case of the day, another methamphetamine addict facing his first federal drug charge, a defendant Bennett had been thinking about all week.
His name was Mark Weller. He was 28 years old. He had pleaded guilty to two counts of distributing methamphetamine in his home town of Denison, Iowa, which meant his mandatory minimum sentence as established by Congress was 10 years in prison. His maximum sentence was life without parole. For four months, he had been awaiting his hearing while locked in a cell at the Fort Dodge Correctional Facility, where there was nothing to do but watch Fox News on TV, think over his life and write letters to people who usually didn’t write back.
“I can’t tell you how many times I’ve asked myself, ‘How did I get into the situation I’m in today?’ ” he had written.
Marijuana starting at age 12. Whiskey at 14. Cocaine at 16, and methamphetamine a few months later. “Always hooked on something” was how some family members described him in the pre-sentencing report, but for a while he had managed to hold his life together. He graduated from high school, married, had a daughter and worked for six years at a pork slaughterhouse, becoming a union steward and earning $18 an hour. He bought a doublewide trailer and a Harley, and he tattooed the names of his wife and daughter onto his shoulder. But then his wife met a man on the Internet and moved with their daughter to Missouri, and Weller started drinking some mornings before work. Soon he had lost his job, lost custody of his daughter and, in his own accounting, lost his “morals along with all self control.” He started spending as much as $200 each day on meth, selling off his Harley, his trailer and then selling meth, too. He traded meth to pay for his sister’s rent, for a used car, for gas money and then for an unregistered rifle, which was still in his car when he was pulled over with 223 grams of methamphetamine last year.
He was arrested and charged with a federal offense because he had been trafficking methamphetamine across state lines. Then he met for the first time with his public defender, considered one of the state’s best, Brad Hansen.
“How much is my bond?” Weller remembered asking that day.
“There is no bond in federal court,” Hansen told him.
“Then how many days until I get out?” Weller asked.
“We’re not just talking about days,” Hansen said, and so he began to explain the severity of a criminal charge in the federal system, in which all offenders are required to serve at least 85 percent of whatever sentence they receive. Weller didn’t yet know that a series of witnesses, hoping to escape their own mandatory minimum drug sentences, had informed the government that Weller had dealt 2.5 kilograms of methamphetamine over the course of eight months. He didn’t yet know that 2.5 kilograms was just barely enough for a mandatory minimum of 10 years, even for a first offense. He didn’t know that, after he pleaded guilty, the judge would receive a pre-sentencing report in which his case would be reduced to a series of calculations in the controversial math of federal sentencing.
“Victim impact: There is no identifiable victim.”
“Criminal history: Minimal.”
“Cost of imprisonment: $2,440.97 per month.”
“Guideline sentence: 151 to 188 months.”
What Weller knew — the only thing he knew — was the version of sentencing he had seen so many times on prime-time TV. He would have a legal right to speak in court. The court would have an obligation to listen. He asked his family to send testimonials about his character to the courthouse, believing his sentence would depend not only on Congress or on a calculator but also on another person, a judge.
The night before Weller’s hearing, Bennett returned to a home overlooking Sioux City and carried the pre-sentencing report to a recliner in his living room. He already had been through it twice, but he wanted to read it again. He put on glasses, poured a glass of wine and began with the letters.
“He was doing fine with his life, it seems, until his wife met another man on-line,” Weller’s father had written.
“After she left, the life was sucked out of him,” his sister had written.
“Broken is the only word,” his brother had written. “Meth sunk its dirty little fingers into him.”
“I hope this can explain how a child was set up for a fall in his life,” his mother had written, in the last letter and the longest one of all. “Growing up, all he pretty much had was an alcoholic mother who was manic depressive and schizophrenic. When I wasn’t cutting myself, I was getting drunk and beating the hell out of him in the middle of the night. When I wasn’t doing all that I was trying to kill myself and ending up in a mental hospital. Can you imagine being a four year old and getting beat up one day and having to go visit that same person in a mental hospital the next? No heat in the house, no lights, nothing. That was his starting point.”
Bennett set down the report, stood from his chair and paced across a room decorated with photos of his own daughter, in the house that had been her starting point. There were scrapbooks made to commemorate each year of her life. There were videotapes of her high school tennis matches and photos of her recent graduation from a private college near Chicago.
He had decided to become a judge just a few months after her birth, in the early 1990s. His wife had been expecting twins, a boy and a girl, and had gone into labor several months prematurely. Their daughter had survived, but their son had died when he was eight hours old, and the capriciousness of that tragedy had left him searching for order, for a life of deliberation and fairness. He had quit private practice and devoted himself to the judges’ oath of providing justice, first as a magistrate judge and then as a Bill Clinton appointee to the federal bench, going into his chambers to work six days each week.
Since then he had sent more than 4,000 people to federal prison, and he thought most of them had deserved at least some time in jail. There were meth addicts who promised to seek treatment but then showed up again in court as robbers or dealers. There were rapists and child pornographers that expressed little or no remorse. He had installed chains and bolts on the courtroom floor to restrain the most violent defendants. One of those had threatened to murder his family, which meant his daughter had spent her first three months of high school being shadowed by a U.S. marshal. “It is a view of humanity that can become disillusioning,” he said, and sometimes he thought that it required work to retain a sense of compassion.
Once, on the way to a family vacation, he had dropped his wife and daughter off at a shopping mall and detoured by himself to visit the prison in Marion, Ill., then the highest-security penitentiary in the country. He scheduled a tour with the warden, and at the end of the tour Bennett asked for a favor. Was there an empty cell where he could spend a few minutes alone? The warden led him to solitary confinement, where prisoners spent 23 hours each day in their cells, and he locked Bennett inside a unit about the size of a walk-in closet. Bennett sat on the concrete bed, ran his hands against the walls and listened to the hum of the fluorescent light. He imagined the minutes stretching into days and the days extending into years, and by the time the warden returned with the key Bennett’s mouth was dry and his hands were clammy, and he couldn’t wait to be back at the mall.
“Hell on earth,” he said, explaining what just five minutes as a visitor in a federal penitentiary could feel like, and he tried to recall those minutes each time he delivered a sentence. He often gave violent offenders more prison time than the government recommended. He had a reputation for harsh sentencing on white-collar crime. But much of his docket consisted of methamphetamine cases, 87 percent of which required a mandatory minimum as established in the late 1980s by lawmakers who had hoped to send a message about being tough on crime.
By some measures, their strategy had worked: Homicides had fallen by 54 percent since the late 1980s, and property crimes had dropped by a third. Prosecutors and police officers had used the threat of mandatory sentences to entice low-level criminals into cooperating with the government, exchanging information about accomplices in order to earn a plea deal. But most mandatory sentences applied to drug charges, and according to police data, drug use had remained steady since the 1980s even as the number of drug offenders in federal prison increased by 2,200 percent.
“A draconian, ineffective policy” was how then-Attorney General Eric H. Holder Jr. had described it.
“A system that’s overrun” was what Republican presidential candidate Mike Huckabee had said.
“Isn’t there anything you can do?” asked Bennett’s wife, joining him now in the living room. They rarely talked about his cases. But he had told her a little about Weller’s, and now she wanted to know what would happen.
“Childhood trauma is a mitigating factor, right?” she said. “Shouldn’t that impact his sentence?”
“Yes,” he said. “Neglect and abuse are mitigating. Definitely.”
“And addiction?”
“No history of violence?”
“Yes. Of course,” he said, standing up. “It’s all mitigating. His whole life is basically mitigating, but there still isn’t much I can do.”
The first people into the courtroom were Weller’s mother, his sister and then his father, who had driven 600 miles from Kansas to sit in the front row, where he was having trouble catching his breath. He gasped for air and rocked in his seat until two court marshals turned to stare. “Look away,” he told them. “Have a little respect on the worst day of our lives. Look the hell away.”
In came Weller. In came the judge. “This is United States of America versus Mark Paul Weller,” the court clerk said.
And then there was only so much left for the court to discuss. Hansen, the defense attorney, could only ask for the mandatory minimum sentence of 10 years, rather than the guideline sentence of 13 years or the maximum of life. The state prosecutor could only agree that 10 years was probably sufficient, because Weller had a “number of mitigating factors,” he said. Bennett could only delay the inevitable as the court played out a script written by Congress 30 years earlier.
“This is one of those cases where I wish the court could do more,” said Hansen, the defense attorney.
“He’s certainly not a drug kingpin,” the government prosecutor consented.
“He could use a wake-up call,” Hansen said. “But, come on, I mean . . .”
“He doesn’t need a 10-year wake-up call,” Bennett said.
“Ten years is not a wake-up call,” Hansen said. “It’s more like a sledgehammer to the face.”
“We talk about incremental punishment,” Bennett said. “This is not incremental.”
They stared at each other for a few more minutes until it was time for Weller to address the court. He leaned into a microphone and read a speech he had written in his holding cell the night before, a speech he now realized would do him no good. He apologized to his family. He apologized to the addicts who had bought his drugs. “There is no excuse for what I did,” he said. “I was a hardworking family man dedicated to my family. I turned to drugs, and that was the beginning of the end for me. I hope I get the chance to better my life in the future and put this behind me.”
“Thank you, Mr. Weller. Very thoughtful,” Bennett said, making a point to look him in the eye. “Very, very thoughtful,” he said again, and then he issued the sentence. “You are hereby committed to the custody of the bureau of prisons to be imprisoned for 120 months.” He lowered his gavel and walked out, and then the court marshal took Weller to his holding cell for a five-minute visitation with his family. He looked at them through a glass wall and tried to take measure of 10 years. His grandmother would probably be dead. His daughter would be in high school. He would be nearing 40, with half of his life behind him. “It’s weird to know that even the judge basically said it wasn’t fair,” he said.
Down the hall in his chambers, Bennett was also considering the weight of 10 years: one more nonviolent offender packed into an overcrowded prison; another $300,000 in government money spent. “I would have given him a year in rehab if I could,” he told his assistant. “How does 10 years make anything better? What good are we doing?”
But already his assistant was handing him another case file, the fifth of the day, and the courtroom was beginning to fill again. “I need five minutes,” he said. He went into his office, removed his robe and closed his eyes. He thought about the offer he had received a few weeks earlier from an old partner, who wanted him to return to private practice in Des Moines. No more sentencing hearings. No more bathtub of guilt to drain. “I’m going to think seriously about doing that,” Bennett had said, and he was still trying to make up his mind. Now he cleared Weller’s sentencing report from his desk and added it to a stack in the corner. He washed his face and changed back into his robe.
“Ready to go?” his assistant asked.
“Ready,” he said.