Judicial Panel Seeks Repeal of Mandatory Sentence Law

As he sentenced Richard Anderson, U.S. District Judge William Schwarzer wept.

An Oakland longshoreman, Anderson, 49, had been convicted of possession of crack cocaine after giving a drug dealer a ride to a meeting at a fast-food restaurant with a undercover federal agent.

Anguished at the sentencing in September, Schwarzer, noted for his reserve, said in a quiet voice that Anderson had no criminal record and had earned a reputation, after 24 years on the docks, as an honest, reliable worker.

Yet under a new drug law, Schwarzer said that he had no choice but to sentence Anderson to 10 years in prison.

“We are required to follow the rule of law, but the rule of law presupposes that it will serve justice,” Schwarzer said, his voice giving way. “ . . . It behooves us to think that it may profit us very little to win the war on drugs if, in the process, we lose our soul.”

The judge sobbed as he announced the 10-year term without possibility of parole. Even with good time, Anderson will not walk free for 8 1/2 years.

Schwarzer’s display of frustration and emotion has already become an oft-told story among the California bench and bar, underscoring complaints by judges nationwide about the federal law that slams players in the drug trade with strict mandatory minimum prison terms.

The judge, who sits in San Francisco, is scheduled to be the first witness this morning at a San Diego hearing where a blue-ribbon committee charged with recommending changes in the federal courts will hear testimony about its suggestions--one of which is the repeal of the mandatory minimum sentencing law.

Schwarzer, the co-author of a recent book on federal procedures and known throughout the federal judiciary for his intellect, said he plans to tell the panel that the law must go. “The system produces very hard cases which are prone to bad law,” he said.

The panel, created by Congress and called the Federal Courts Study Committee, released a 144-page report last month that contains more than 100 recommendations. Charged with developing a first-ever long-range plan, the committee proposed what many legal experts believe is the most sweeping restructuring of the federal courts since they were created in 1789.

It did that by trying to “figure out what we can do best and get the other things out of the system,” said U.S. District Judge Judith N. Keep of San Diego, the lone California judge on the 15-member committee and the chairwoman of today’s meeting.

“The more efficiently we can operate, and the more attention we can pay to the cases that are here, that should save John Q. Public money,” Keep said.

With that motivation in mind, the panel’s tentative report urges Congress to curb additional judgeships, create more specialized courts and reorganize the appellate circuits. The report also suggests doing away with a historical rule that allows disputes to be brought into federal court when the parties are from different states.

Those suggestions, like most of the recommendations, are “ideas only a lawyer or a judge could love--or at least debate,” Keep said.

But, she said, everyone has an idea about criminals and sentencing, so the panel knew it would attract attention by suggesting that Congress repeal the 1986 mandatory minimum sentencing laws and, as a corollary, amend the rigid 1987 sentencing guidelines. The 1987 rules, which set forth a range of sentences for specific crimes and use the mandatory minimums as a floor, give criminals fixed prison terms without possibility of parole.

With debate over the report hitting full swing in the legal community--the San Diego meeting is the seventh of nine public sessions scheduled this week and last nationwide--Keep stuck by the the sentencing- law recommendations.

“If (Congress) adopted our proposals to soften the guidelines as well as eliminate the mandatory minimum sentences, those could significantly free us up to hear more civil case,” she said.

The most important problem with the two laws, especially the mandatory minimum laws, is that they reduce a defendant’s incentive to plead guilty, the committee said in its report. They reduce the incentive because they take away a judge’s discretion to soften a sentence. Without that incentive, there is no reason for an accused criminal to plea bargain. The federal system, however, is “heavily dependent” on bargaining, the report said.

Traditionally, the report said, 85% to 90% of criminal convictions are the result of guilty pleas, “most of which are part of a plea bargain.” Without guilty pleas, cases go to trial, a time-consuming and expensive proposition.

Because of speedy-trial rights, criminal cases take priority over civil cases, shunting them and backing them up. Meanwhile, the number of criminal cases being filed--and headed for trial unless there is a plea bargain--keeps climbing.

In the San Diego court, for example, which hears cases from San Diego and Imperial counties, the 989 criminal filings in 1985 rose to 1,429 in 1989, a jump of 44% in four years, according to the Administrative Office of the U.S. Courts in Washington.

Of the 989 filings in 1985, 226, or 27%, were drug-related cases, said David Sellers, a spokesman for the Administrative Office, the staff arm of the governing agency of the federal court, the U.S. Judicial Conference. Of the 1,429 filings in 1989, 614, or 43%, were drug-related, Sellers said.

“Quite a jump,” he said.

In light of more anti-drug legislation approved in 1988, the U.S. Judicial Conference estimates that by 1991, drug filings will increase 20% to 50% over 1988 levels.

While the rate of drug cases in federal courts in southern and western states--Southern California, Arizona, New Mexico, Texas and Florida--resembles San Diego’s, the percentage of drug cases also has climbed everywhere, Sellers said.

Nationwide, the number of drug cases in the federal courts soared 280% from 1980 through 1989, Sellers said.

And it’s the drug cases that are the target of minimum mandatory sentencing laws.

Part of the Anti-Drug Abuse Act of 1986, the mandatory minimum laws focus only on the amount of drugs involved.

If a case involves 500 grams of cocaine or five grams of crack cocaine, the minimum sentence is five years in federal prison. With a prior drug conviction, it’s 10 years.

Five kilos of cocaine or 50 grams of crack mean at least 10 years. With a prior felony drug offense, the minimum is 20 years. If there are two prior offenses, the mandatory sentence is life without the possibility of parole.

A person’s background, role in the crime, past record, remorse--all, under the law, are irrelevant.

The mandatory minimums serve as the floor for the sentencing guidelines, a system that took effect in 1987 based on the idea that prison is intended to punish, not rehabilitate. Before 1987, some judges gave light sentences, in part, because they believed prison was not rehabilitative.

Under the guidelines, however, punishment is geared strictly to the crime, not the wishes of a judge.

The guidelines reduce the judge’s role in sentencing but still allow some discretion. The mandatory minimums, however, allow for no flexibility, and so, according to Schwarzer, promote “gross disparities” in sentencing.

“The law allows no distinction between the casual participant who merely agrees to drive a car for a few dollars and may have no idea of the amount of drugs involved, and the professional operator who arranges the deal,” Schwarzer said.

Anderson had been recognized on an East Oakland street by an acquaintance who needed a ride to a Burger King. For $5 or gas money, it wasn’t clear which, Anderson agreed to drive him there, said one of the prosecutors, Asst. U.S. Atty. Jeffrey Bornstein.

At the restaurant, a federal agent posing as a drug buyer went to Anderson’s car and found a paper bag containing 100 grams of crack. Anderson suggested that the acquaintance put it there, saying he did not know how the bag got into the car.

The government presented evidence that Anderson permitted the undercover officer to look at and then take the crack from the car, suggesting he was in on the sale, said one prosecutor in the case, Asst. U.S. Atty. Rudy Orjales.

A jury convicted Anderson of possession of cocaine with intent to distribute, Bornstein said. At the sentencing, Schwarzer said he “might have found differently,” though there was evidence to support the jury’s decision.

“To be honest with you, we’ve all had ones like that,” Keep said. “They’re just astounding.”

The “vast majority” of federal judges are “extremely concerned” about the mandatory minimum sentences, Schwarzer said.

Last July, federal judges in the U.S. 9th Circuit Court of Appeals--which covers California and eight other western states--urged Congress to review the law. Schwarzer said at least three other federal appellate circuits have since adopted similar resolutions.

Last June, spokesman Sellers said, a U.S. Judicial Conference committee recommended that the mandatory minimum laws be repealed, finding they led to results that Congress could not possibly have desired.

Keep’s committee agreed with that recommendation, stating the mandatory minimum laws inhibit efforts to “fashion a comprehensive and rational sentencing system.”

If the laws are repealed, the U.S. Sentencing Commission, created with the 1987 guidelines to set ranges for the new rules, should “reconsider” the parameters in drug cases, the committee said.

Given the “huge” projected increase in the federal prison population of inmates with drug convictions, it is “important” for the commission to “reassess” the appropriate guidelines without the “driving force” of mandatory minimums, the committee said.

Keep said she recognizes that the recommendation will be attacked by people who say that judges simply want to get back the discretion--or, detractors say, the power--they had before the laws took effect.

“That is not it,” she said. “It’s just that people do not fit into cubbyholes. You can’t put a criminal into a grid. There are human, personal factors that have to be considered in any fair system.”

After the San Diego meeting today, the committee will hold two more meetings, one Tuesday in New York, the other Wednesday in Washington, as it prepares for review sessions in February and March.

By law, the final report is to be delivered April 2 to President Bush, Congress, the Judicial Conference and others.

Besides Keep, the 15 committee members, all appointed in late 1988 by U.S. Chief Justice William Rehnquist, include four federal judges, a state supreme court judge, a former U.S. solicitor general, a top U.S. Justice Department lawyer, Sen. Charles E. Grassley (R-Iowa) and Sen. Howell Heflin (D-Ala.), Rep. Carlos J. Moorhead (R-Glendale) and Rep. Robert W. Kastenmeier (D-Wis.), a state’s attorney and two private lawyers.

The prestige of the members may help push through Congress the repeal of the mandatory minimum laws. Then again, maybe not, Keep said.

“I think the congress people and the senators in the committee certainly have been interested enough to put it around, but there’s a political factor back there (in Washington) that I can’t evaluate.

“It may be precipitous now,” Keep said. “ . . . I think that Congress is going to face not too long from now, maybe a year, a real crisis with prison space. And there will be two choices:

“Either allocate millions and millions of dollars to the courts and to build more prisons, or do something to allow persons who are not dangerous back into the community. And that would be the time when I think these (recommendations) would be seriously considered.”

Until then, she fears that she, Schwarzer and other judges will be forced to impose sentences that are eminently legal--but perhaps not right. At Anderson’s sentencing, Schwarzer said:

“The law denies the judges to bring to bear their conscience and their sense of what is just, and, in a sense, makes judges clerks--or, not even that, computers, automatically imposing sentences without regard to what is just and right. And when that is allowed to happen, the rule of law is drained of the semblance of justice.”