Grotesquely Severe Sentences

“It requires one with more expertise in the area than I possess to offer a complete analysis, but it does seem justified to say this: Our resources are misspent, our punishments too severe, our sentences too long.”

These words and others were uttered in 2003 by Justice Anthony Kennedy of the U.S. Supreme Court. They were delivered in his keynote speech that summer at the annual meeting of the American Bar Association, and they were intended to challenge all lawyers to care about what happens to others when we lock them up. To help reduce federal sentences generally and repeal mandatory minimums in particular. To sow more balance and reason in our system of corrections.

As the work continues, here are two stories of courageous, conscientious judges who strove to do justice and did.

The first involves a judge who sentenced a man for three armed carjackings. At trial, the man was convicted of the three carjacking counts as well as three corresponding counts for use of a gun, even though it was an accomplice who actually carried the gun. Before trial, the government had offered to deal the case for up to 12 years by dismissing the gun counts, but after trial, the judge was forced to sentence the man to 57 years because he had no choice: the mandatory minimums on the gun counts added 45 consecutive years to the 12-year sentence. None of the man’s co-defendants, who all pleaded guilty, received more than six years. The judge was aghast, and he began to speak out against such “grotesquely severe sentences” caused by the use of mandatory minimums to “annihilate a defendant who dares to go to trial.” And more recently, he was able to persuade the government to vacate two of the man’s convictions so that he could be resentenced to time served, having served 20 years with 37 left to go.

The second involves a judge who sentenced a man for downloading child pornography. After the man was convicted at trial, the federal sentencing guidelines computed a range of 21 to 27 years, and prosecutors asked for the statutory maximum of 20 years. The judge did something different. Before dismissing the jury, he asked each member what he or she thought would be an appropriate sentence. The jurors recommended an average sentence of 14 months, so the judge considered that along with other factors and sentenced the defendant, who had no other criminal history, to the mandatory minimum of five years in prison. The procedure was unusual but not without precedent, and according to one expert, it can be a wise thing to do. “In capital cases, getting the jury’s sanction for a death sentence is a crucial part of making that sentence legitimate, because the jury represents the society. I don’t see why, in other cases, the same logic shouldn’t hold.”

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