Trying to be tougher than the next guy

Fighting the good fight

[Reprinted from Issues & Views January 5, 2004]

On January 4, CBS's "60 Minutes" took on the horror that is called Mandatory Minimum sentencing, a subject frequented often on this website. [See here, here and here.] Host Ed Bradley described these harsh sentencing laws and interviewed principals in law enforcement who object to them.

Bradley: In the wake of the cocaine epidemic of the 1980s, Congress passed harsh sentencing guidelines and mandatory minimum sentencing laws requiring federal judges in most cases to impose long jail terms on anyone convicted of drug trafficking -- no matter how small their crime. But now, objections to the drug laws are coming from an unexpected source--federal judges themselves. Normally reluctant to speak out on political matters, federal judges by the dozens have protested harsh drug laws, contending the laws force them to send some people to prison who don't belong there and others for many more years than they deserve.

Bradley told of Brenda Valencia, a 19-year-old, who had never been in trouble with the law. In 1991, Valencia made the mistake of giving a ride to her roommate's stepmother, who was on her way to pick up money from a drug dealer.

Bradley: In West Palm Beach, federal drug agents arrested Brenda Valencia, the woman she gave a ride to, and the two men who set up the deal. Miami prosecutors charged Brenda with being part of a cocaine conspiracy. Federal law required the judge to sentence her to at least 12 years and 7 months in prison. But he wasn't happy about it. He wrote, "Even the low end of the guideline range is an outrage in this case."

Needless to say, as someone who played such a minor role in the event, Valencia claims, "I just don't feel that the time I received was a just punishment."

Bradley: Neither does Joe Bogan who, for 18 years, was a warden in the federal prison system, including six at this penitentiary at Fort Worth, Texas. Bogan says Brenda's case is not unusual.

Joe Bogan: It's not fair, it's not just. I mean if you look back here in this prison, there's maybe 1400 inmates, there are probably 700 or 800 of them who could be out, and their sentences would still be just and would still hold them accountable for their criminal conduct. Our sentences are just too long in this country.

Bradley: Not according to Congress which, last spring, passed a law which makes it even harder for a federal judge to impose a lighter sentence when that judge feels it is called for. [See Feeney Amendment.] That was too much for Judge John Martin, a former prosecutor and a Republican appointee to the federal district court.

Judge Martin: This isn't a Republican or Democratic, it's not a liberal or conservative issue. Judges throughout the country of all political persuasions feel that they have to have discretion so that they can do justice in the individual cases.

Bradley: You are resigning from the bench. You said, "I no longer want to be part of our unjust criminal justice system."

Martin: And it is unjust. It's taking people who are low-level violators and putting them in jail for 15-20 years. [See "Let Judges Do Their Jobs," by Judge Martin, on the FAMM website.]

Bradley then told of Eric Sterling, a former member of Congress.

Bradley: In 1986, when he was the lead attorney for the House Subcommittee on Narcotics, Eric Sterling helped write the Mandatory Minimum drug legislation. Sterling has left Congress and is now working to change the drug laws.

Eric Sterling: This has been the worst legislation I've ever been involved in and it's probably the worst thing I've ever done professionally as a lawyer.

Bradley: How long did it take you to come up with the bill?

Sterling: It was done in three days, three or four days.

Bradley: And how long would it normally take?

Sterling: Months, years. This was extraordinary. This was the hastiest thing, the most unusual thing I've ever been involved in on Capitol Hill.

Bradley speculates on what the rush was all about to get these laws passed. Not only the public's exasperation with the crime epidemic, but a particular, unfortunate case helped to propel politicians eager to please. That was the untimely death of the young basketball player Len Bias, who died of a cocaine overdose. Says Bradley, "For legislators in search of an issue for the midterm elections, Bias's shocking death was just the ticket."

Sterling: They knew Len Bias, and when he died it set off a kind of media political frenzy on Capitol Hill. It was like a heated Sotheby's auction, you know, where everyone was trying to be tougher than the next guy.

Bradley: In those days, Congressman Bill McCollum was one of the toughest guys in favor of stricter drug laws, and he makes no apologies for it.

Rep. Bill McCollum: You had a lot of deaths from this stuff, and people wanted to send a strong message. I think the idea of characterizing these people as "small fry" is a terrible characterization. It's a misnomer. They may be comparably smaller in terms of the quantity of drugs, but they're still major drug dealers and traffickers.

It seems that Patrick Murphy, the Chief Judge of the Federal District Court in East St. Louis, Illinois, does not agree.

Bradley: Judge Murphy doles out long sentences nearly every week to drug dealers and traffickers. He says those sentences haven't helped in his district.

Judge Murphy: You're in East St. Louis. East St. Louis is crime-ridden, poverty-stricken, violent, dirty, dangerous, and here the sentences are the longest and the hardest than anywhere in the federal judiciary.

Bradley: You really don't think locking up so many people for these long mandatory sentences has made this a safer place?

Murphy: No, if that were the case this would be heaven itself, because here prosecutions happen regularly, sentences are meted out long and hard, the hardest sentences in the United States, right here.

Bradley: What would you say to someone who claims that these tough mandatory sentences are taking drug kings and putting them out of business for long stretches of time by locking them up in prison?

Murphy: What passes for a drug king in 99% of the cases is nothing more than a young man who can't even afford a lawyer when he's hailed into court. I've seen very few drug kings.

Bradley: What Judge Murphy does see is defendant after defendant like Brenda Valencia, who served 11 years of a 12-year, 7-month sentence for giving a drug dealer a ride.

In the case of Valencia, however, since she was not part of a drug circle, she knew no one and could offer no information and, therefore, could not hope to receive a lighter sentence.

Murphy: The people with the least culpability haven't any information to trade to the prosecutor for a reduced sentence, but the people who are more culpable, yes, they've got lots of information that they trade. So, you've got the less culpable people getting maybe 15 years, and the more culpable getting five. Again, it's not just.

Bradley then cited some statistics on the increases in drug usage: In 1991, there were 12 million illegal drug users; now, there are 19 million. He then questioned McCollum.

Bradley: So, after a decade of tough sentences, it's gone up by 7 million drug users.

McCollum: Well, if we didn't have those tough sentencing laws, you'd have a whole lot more people than 19 million on drugs.

Bradley: So, let me see if I'm hearing you correctly. The use has gone up by 50% in about a decade, and you say the laws are working?

McCollum: I'm telling you that it would be worse today, if we didn't have them. Far worse.

(Might McCollum's response fall somewhere on a par with that cryptic adage, "May your house be safe from tigers?" After all, can one ever prove that the man's nightly prayers do not keep tigers away from his home?)

Bradley: Even conservatives on the Supreme Court are saying that Congress has gone too far. Last August, Supreme Court Justice Anthony Kennedy, a Reagan appointee, told the American Bar Association, "I accept neither the wisdom, the justice, nor the necessity of mandatory minimums." In all too many cases, he said, they are unjust.

For information about methods and strategies to challenge unjust sentencing laws, contact: Families Against Mandatory Minimums (FAMM), 1612 K Street, N.W., Washington, DC 2006; (202) 822-6700.

Also see the websites of Media Awareness Project, and in New York State, see Drop the Rock, a campaign against the Rockefeller drug laws, and

Religious Leaders For a More Just and Compassionate Drug Policy, members of clergy who have joined the movement for drug reform; P.O. Box 282471, Nashville, TN 37228; (615) 327-9775.

A now defunct group of churches and religious leaders, the Coalition for Jubilee Clemency, was active during the 1990s. You can still view their letter of appeal to the Clinton administration here.

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