143: Sentencing

Ira Glass

Daniel Rostenkowski was a congressman for 36 years. The powerful chairman of one of the most powerful committees-- Ways and Means. But a funny thing happened when he was sentenced to prison for mail fraud. He started to meet people like one young man, 20 years old, who approached him in the exercise yard one day.

Ira Glass

To put this number in perspective, in federal courts a first time rapist gets five to seven years, kidnappings, four to five years, second degree murder is 11 to 14 years. And here's the thing. The young man was sentenced under a 1980's drug law that Rostenkowski had voted for himself. It set harsh mandatory minimum sentences for drug offenders, even first time offenders. Rostenkowski thought the guy deserved to be punished, but locking him up from the end of adolescence until the beginning of middle age, it seemed excessive.

Ira Glass

Not long after he got out of prison, Rostenkowski made a speech to lawyers in which he said he voted for these laws because he was quote, "swept along by the rhetoric about getting tough on crime. Few of us had the patience or courage to point out to the public that there was relatively little that changes in federal laws could do to reduce the violent crime in their neighborhood. So we acted, took our low bows, and went on to other topics." As a result, he said, we lock up too many people for too long.

Ira Glass

Before he was put under investigation himself, Rostenkowski says, he didn't really know about the sentencing guidelines even though he'd voted for them. And in this way, I'd argue, he is more like the rest of us than not. Most of us don't pay much attention to all the laws that are written. We do exactly what Rostenkowski did. We have some vague faith that someone, somewhere, is paying attention. And if something bad is happening, if something unfair is happening, somebody will tell us.

What we offer today on our radio program is a study of how that faith failed us and where we've ended up. From WBEZ Chicago and Public Radio International, it's This American Life. I'm Ira Glass.

In the last 20 years there's been a radical shift in the way that we sentence people to prison-- mandatory minimum sentences, three strikes and you're out laws, laws bouncing 12 and 13 and 14 year olds into adult court for long adult sentences. Because of all this, the prison population has grown by 50% in less than a decade.

And at some point or another we've all heard news stories about harsh sentences, possibly unfair sentences. And many of us carry a notion somewhere in our heads that maybe some part of this has gone too far. But, you know, who has the time to sit down and figure all of this out?

Well, in today's show we tried to figure it out. And we bring you stories of places where the law seems to be working just fine, where it seems fair, and stories about those areas in which there seem to be some problems. All our stories today are about drug laws.

Act One of our program today: What's Wrong With This Picture? The story of how a person could be sentenced to 19 years for drug possession even if police found no drugs, no drug money, no residue, no paraphernalia. Even if it's a first offense.

Act Two: How We Got Here. A firsthand account of how and why Congress wrote these laws in the first place. And believe me, my friend, it is not pretty, from a lawyer who helped draft the laws working for the Congress.

Ira Glass

Act One. What's Wong With This Picture.

This is the story of a case where the law worked exactly as it is supposed to. This is our system working as we have designed it.

Dorothy Gaines was living in Mobile, Alabama, 39 years old, the mother of three children, working as a nursing assistant. The father of her oldest child was a man named Larry Johnson. Dorothy says that she hadn't talked with him in years, that they used to fight over child support. There was bad blood between them. And when he was thrown in prison on drug charges, to get himself a lower sentence he said that she was part of a drug ring.

Ira Glass

At the time she and her children were living with a man named Terrell Hines, her common-law husband.

Ira Glass

Federal investigators came to believe that Dorothy and her husband were part of a conspiracy to move cocaine from Miami to Mobile. She was charged with possession of two kilos of crack cocaine with intent to distribute. Lyn Campbell is Dorothy's current attorney.

Ira Glass

They found no paraphernalia, no drug scales. They found no evidence that she'd ever made any money from the drug business.

Ira Glass

Because there was no physical evidence implicating Dorothy, her case had been dropped in state court. But the federal rules are different. In federal court you don't need physical evidence. And the federal drug law has another provision that hurt Dorothy Gaines. It says that if you have knowledge of a conspiracy, or benefit from a conspiracy, or have some tiny role in a conspiracy, you can be accused of all the drugs involved in the conspiracy. So even if you just carry an unmarked package from one side of town to another once, you could be charged with the same amount of drugs as the person who ran the whole operation for years.

Dorothy fought the charges. She says she didn't do anything wrong. And she says they have no real evidence against her, just the testimony of a bunch of admitted drug dealers.

Ira Glass

The U. S. Attorney's Office in southern Alabama, which is the office that prosecuted Dorothy Gaines, declined to be interviewed on tape for this story. But a prosecutor acting as a spokesman for that office told us over the phone that the office still contends that she's guilty, that her conviction has withstood several appeals. And as for her 19-year prison term, the prosecutor said that when he began his job, he thought sentences like this were unfair. But now that he's seen the devastation that crack cocaine has on families' lives, he thinks they're justified. He reiterated this several times.

One of the jurors in Dorothy Gaines' case told a reporter that, while he thought that she deserved a few years in prison, he was flabbergasted that she got 19. It was possible for him to be surprised because, in federal cases like this one, the jurors only determine guilt or innocence. They aren't present for sentencing. Sentencing is done by judges who have to follow federal sentencing guidelines.

And at sentencing, the rules of evidence are much looser than they were during the trial-- testimony that never made it to the witness stand, things that were said to police but never entered into evidence, incredibly, even past charges that you've been accused of and found innocent of in other trials. These can all be used against you during sentencing. And it is at this point in the process, when the rules are so loose, that the court decides the amount of the drugs you'll be charged with. A tiny amount will mean a smaller sentence. A greater amount can mean decades in prison. Again, Dorothy's attorney Lyn Campbell.

Ira Glass

Nearly 2/3 of all federal drug offenders across the country have never been convicted of a violent crime. 40% are first-time offenders. It's tens of thousands of people.

Here's something else about federal drug law. There is a randomness to the way that it's enforced. Whether you're accused has a lot to do with where you live. Dorothy Gaines had the bad luck to live in a federal district that very aggressively targets drug offenders. Southern Alabama, where the largest city is Mobile, population 300,000, convicted roughly the same number of federal drug offenders in 1998 as all of Los Angeles, population 3.5 million.

Federal drug enforcement also tends to disproportionately prosecute minorities. They made up 73% of federal drug convictions in 1998 , even though 72% of illegal drug use is by white people. The federal penalties are much more severe for crack cocaine than for other drugs.

This is reporter Sam Hodges, who first wrote about Dorothy's case in the Alabama Mobile Register.

Ira Glass

In the end, her 19 year prison term was higher than the federal mandatory minimum sentence for rape, for kidnapping, for running a slave trade, for criminal sexual abuse of a child, for second degree murder, for conspiracy to commit murder. Her sentence had the same minimum as she would have gotten if she had hijacked a plane or bought and sold children for use in pornography.

Ira Glass

Dorothy Gaines, she recently lost her last appeal in the Eleventh District Court. She's not yet told her children. She has one final chance and it's a long shot. She is now appealing to President Clinton for clemency.

[MUSIC-- "RUN ON" BY MOBY]

Ira Glass

Act Two. How We Got To This Point.

It's tempting, when we hear a story like Dorothy Gaines', to think that the tough laws that put her away for 19 years were created by conservative law and order types, Republicans. And it would be nice to believe that part of the motivation for the loss is idealism. There is, after all, a reasonable case to be made for getting tough on criminals. But in fact, the drug laws that did in Dorothy Gaines were not created by Republicans but by Democrats. And as for how much idealism was at work, well, let us examine the history. It is an amazing story that begins in 1986.

Ira Glass

This is Eric Sterling. In 1986 he was the lead lawyer when it came to drug laws for the House Judiciary Committee, which was about to become a central political battleground. The two sides in this battle: on one side Tip O'Neill and the Democrats, who had the House. On the other side, Ronald Reagan and the Republicans, who had the Senate, the White House, and, you could argue, the hearts of the American people.

Ira Glass

And this was traction. By the summer of 1986, the national media had also discovered crack cocaine, and was kicking in full force with scare stories about this new menace to society. When Tip O'Neill got back to Washington he bolted into action.

Ira Glass

So it's a legislative frenzy. And three days before the end of the whole process, a couple of legislators propose this idea-- mandatory minimum sentences, a radical recasting of drug law. If you were caught with drugs it would not matter if you were a first time offender. It wouldn't matter if there were extenuating circumstances. The only thing that would matter is the amount of drugs you were caught with. And then the judge would give you a sentence whose length was imposed by the Congress in these laws.

Ira Glass

And while these laws were being rushed through Congress, there was actually a commission of sober minded people, Democrats and Republicans, trying to figure out a fair solution to sentencing all federal crimes. And they were doing all the things that Congress was not doing. They were going over statistics, they were talking to prison officials and to police and to judges. And this commission was set up just two years before by Congress itself. And it was due to present its comprehensive overhaul of all sentencing in just a year.

Congress ignored all that. Congress also ignored an order rather relevant bit of recent history, which is that Congress had already tried mandatory minimum sentences for drug crimes back in the 1950s this exact solution, and it didn't work. Drug use went up. So in the 1970s they repealed all those laws.

Ira Glass

In fact, it was such a success that two years later the Democrats did the whole thing again, rushed their way to another set of drug laws in a matter of weeks. And this is where they added one of the rules that did in Dorothy Gaines-- the law that any low level person who is judged to be part of a conspiracy, they can be sentenced at the same level that the leader of the conspiracy is if they have knowledge of the conspiracy and benefit from it in any way.

Ira Glass

Eric Sterling quit his job with the House Judiciary Committee, disturbed over the kinds of drug laws that they were making, and created the Criminal Justice Policy Foundation, an organization that is trying to get Congress to change those laws. He now heads the organization.

We invited the two leading supporters of these tough drug laws in Congress to come on to our program and give their side of all this. Both of them, Republican Representative Bill McCollum and Senator Orrin Hatch, both said no despite repeated phone calls and faxes. We were also turned down by another supporter of these laws, Senator Mike DeWine of Ohio. And two senators' offices simply never returned our calls inviting them onto the show-- that's Republican senators Spencer Abraham of Michigan and John Ashcroft of Missouri.

Coming up, we hear about all the places where drug law seems to be working fairly. And judges, we've got judges. That's in a minute from Public Radio International, when our program continues.

It's This American Life. I'm Ira Glass. Each week on our program, of course, we choose a theme and bring you a variety of different kinds of stories on that theme. Today's program, Sentencing, stories of where our laws may have gone too far in the war on drugs and where they seem to be working just fine. We've arrived at Act Three of our program.

Ira Glass

Act Three: Who Watches the Watchman?

Many people within the judicial system have turned against the harshness and inflexibility of current US drug sentences. The nation's chief law enforcement officer on the drug issue. US Drug Czar Barry McCaffrey, has come out against them, saying they are too strict and ineffective because of that. 86% of all federal judges-- this includes both Republican and Democratic appointees-- say that they want more flexibility to give fair sentences in drug law.

All 12 federal judicial districts have passed a resolution asking Congress to reconsider the wisdom of the current laws. Dozens of senior federal judges have refused to hear any more drug cases. Judge Morris Lasker of the Southern District of New York, a veteran of over 30 years on the bench, stopped hearing drug cases for a couple of years.

Ira Glass

Judge Terry Hatter is the Chief US District Judge for the Central District of California. He says that under the current federal guidelines, 60% of the time he has to play word games-- that's how he put it-- word games to get to a fair result. 20% of the time he says his final ruling is not the sentence he believes would be the right sentence, given the facts.

A big part of the problem, he says, is that because the sentences are set for each crime when the prosecutor chooses what crime to charge a person with, the prosecutor is in effect choosing the sentence. And it turns out there are lots of cases where a person could be charged one way or another, for a more severe crime or a less severe one.

Ira Glass

It wasn't that the witnesses had not cooperated. The prosecution agreed that they had. They told everything they knew. They were truthful. It was just that they did not know that much. They did not have much information to give. They were at the bottom of the drug hierarchy, not that useful to the government's investigations

Judge Hatter felt that was unfair. The women had cooperated as much as they possibly could. It was not their fault that they had no useful information. So he filed the motion that would allow him to sentence them to fewer years than the guidelines permit. This was unprecedented and, it turns out, against the law. It was overturned on appeal, just another example, says Judge Hatter, of how the prosecutor has more power than he does to determine a person's sentence.

Ira Glass

In the 1993 case United States of America against Johnny Patillo, a Reagan appointee to the bench, US District Judge J. Spencer Letts, was so outraged that he had to sentence a man to 10 years for delivering a package containing drugs to a Federal Express office, that his decision in the case included this.

He wrote, it is hard to imagine that there is any other nation in which a convicted rapist with a long and unsavory history of prior misconduct can be sentenced by the judge who presides over his trial to a sentence which will make him eligible for parole in less than three years while defendant, a first time offender with a spotless prior record, stands to be sentenced by a Congress who has never seen him and never judged him, to a minimum sentence of 10 years without the possibility of parole.

In my view a criminal justice system that does not require not only those who accuse a criminal, but also those who sentence him, to confront him and publicly acknowledge their acts as their own to his face, is worse than uncivilized, it is barbaric.

Ira Glass

Act Four: A Night In Drug Court.

So before the show ended we wanted to know, how typical are the horror stories? How typical is a case like Dorothy Gaines'? What happens in a typical drug case? All this hour, up until this point, we've been talking about federal drug laws. And while 20,000 people are convicted each year on federal drug charges, most drug crimes in this country end up in state courts. In 1996 it was 350,000 convictions in state court.

Some states are known for especially ruthless drug laws, like New York State. But for the most part state drug laws are usually less harsh and less rigid than the federal statutes. Often they include a whole range of creative sentencing options including treatment programs, probation, boot camp.

So to find out what happens in a typical drug case, This American Life producer Nancy Updike went to state court here in Chicago.

Nancy Updike

Chicago deals with its huge caseload of drug crimes by holding court at night. The City decided 10 years ago that rather than build new courtrooms to handle its 40,000 drug cases a year, it would simply open up some of its existing courtrooms at the end of the regular court day, and these rooms would handle only felony drug crimes.

The court day starts up about 4:00 PM. For an hour or so, defendants have been heading up the stairs and into the seven story stone courthouse down on 26th Street in Chicago. Unless you work at 26th Street, this is not a place you end up if your life is going well. As I was walking into the building the other day around 3:30, I passed a black man in his fifties and saw him stop in his tracks, quietly throw up on the pavement, and keep walking.

The courtroom I sat in on is set up sort of in the round. The judge's desk is a huge curve at the top of the circle. The jury box sits at his right, usually empty. There are very few jury trials in night court. And at the foot of the circle are two tables, one for the prosecutors and one for the public defenders. Behind the lawyers are huge panes of glass, and behind the glass are defendants and their families.

To picture this courtroom, please don't imagine a majestic, echoey space with fine polished wood like in The Verdict or some John Grisham movie. This room is much smaller and dingier, with fluorescent lights, bland carpeting and 70s paneling on the walls. I'm not allowed to record anything in the courtroom itself. So you'll have to guess at exactly what sound all this bad taste makes. The judge in the courtroom is Daniel Darcy.

Nancy Updike

Darcy is a serious man with white hair who bears a passing resemblance to Andy Griffith. He calls all the defendants Mister and Miss. He hears about 40 cases a night.

Nancy Updike

Here's a typical case. Tony Bell was a skinny, 27 year old black man who kept rubbing his head with his hands. He stood in front of the judge with his back to me, and was charged with possession of 2/10 of a gram of crack. Think of a Sweet'N Low packet. That's a gram. 2/10 of that. He had no prior record. The public defender on his case was Pablo Decastro.

Nancy Updike

When Tony Bell's case was first called, at 10 minutes to five, he said he wanted to go to trial. Judge Darcy said OK, and then put the case off until later to give Pablo a chance to ready his defense. By the time Tony Bell's case was called again an hour later, he'd decided to plead guilty and take two years probation. Pablo said Tony told him he was just tired of waiting and that's why he want to take the plea. The prosecutor on Tony Bell's case, Assistant State's Attorney Mike Hood, didn't buy the idea that Tony was just tired of waiting.

Nancy Updike

Mike Hood says he believes with all his heart that every person he prosecutes in night court is guilty. And Pablo Decastro, the public defender in Tony's case, doesn't exactly disagree.

Nancy Updike

I saw 105 cases in nine hours at night court. Usually what would happen, since almost no one gets in and out of the legal system in one day, is that Judge Darcy would call the case number, some small action would be taken-- a motion or an update on gathering witness testimony-- and then Darcy would put the case off until a later date. This happened in 101 out of the 105 cases I saw. That left four cases, four people who did get sentenced. Three got probation and one guy was sent to prison. He had a record of burglary and had once escaped from prison.

Now, to see how typical those sentences were, I looked at all the cases from the other five courtrooms for the two nights I sat in on Darcy's room. Here's what I found. There were 343 cases total. 18 got probation and 21 got prison time, most of them less than two years. Five people were recommended to boot camp as an alternative to prison. The longest sentence anyone got on those two nights was six years. Two men ended up with that. One had already been in prison for burglary and sexual assault. The other had done time for robbery and also for, as the law delicately puts it, taking indecent liberties with a child.

For the whole month I sat in on, August, 149 people were sentenced to probation, about the same number as were sent to prison, 144. Also, fully half of the defendants who asked for a trial in front of the judge were found not guilty, and a significant number of others were found guilty of a lesser crime than the one they had originally been charged with. The statistics for July and September were similar, about an equal number of sentences for probation and for prison time, and at least half of all trials ending in not guilty.

Overall, examining these cases, it seemed fair. Tiny quantities of drugs got probation or short sentences, even for second and third offenses. Large quantities of drugs, but especially a history of violent crime, meant longer sentences. And dealers got more time than people just caught in possession of drugs. Again, overall it seemed like a decent system.

I had a long talk with Judge Darcy about his position as a state judge versus that of federal judges handling drug crimes.

Nancy Updike

While the sentences for individual cases seemed fair enough, there was one thing that did not seem fair about night court. Out of 105 cases, almost every single defendant was black, maybe 15 Latinos, three white men. In the other courtrooms it was the same. Out of hundreds of defendants, only a tiny handful were white.

It's not that white people charged with drug crimes happened to be coming during the day. The distribution of cases among all the courtrooms, both day and night, is random. And it's not that these courtrooms are just serving black neighborhoods. This building handles all the drug cases for the entire city of Chicago, a city that's only 38% black.

Let me remind you that 72% of drug users nationwide are white according to the Department of Health and Human Services. In Chicago that works out to 66,000 white drug users. But when it comes to drug arrests, look what happens. In Chicago in 1997, the last year police have compiled data for, 37,000 black people were arrested for drug crimes compared to 9,000 white people. I know these numbers can be kind of hard to follow over the radio, so here's the bottom line. If you're a black drug user in Chicago you have a nearly one in two chance of being arrested. White drug users, one in seven. Anyone who works at night court sees it.

I asked judge Darcy what he thought about seeing almost all black defendants night after night, whether it bothers him.

Nancy Updike

It's easy to feel, when you hear about drug sentencing in this country, that the justice system is a total mess, as though the system is running us, not the other way around. We feel this way because what we really want from any system is to feel that it's still possible to operate within it as a human being. We want to see someone make an appropriate exception. We want to see someone understand the reality of the rules they're implementing. We want to see someone grasp the intent behind the system and use the system skillfully in the service of that intent.

I saw all that at night court. I saw Judge Darcy talk to a defendant named, memorably, James Brown, who had been saying for more than a year that he didn't want a public defender, he wanted to hire his own lawyer. Darcy had finally had enough. He wasn't mad, but firm. He leaned forward and said, let me explain this to you. If you don't have an attorney with you next time, this public defender right here is going to stay with you and we are going to set this case for trial. I just want to make that absolutely clear.

I saw Darcy agree to recommit a kid to probation after he was picked up on a new drug charge and then look the kid in the eye and say, you only get so many chances. Do you understand that? The kid nodded.

I found out that prosecutor Mike Hood refused to help a cop polish up his testimony, even though it would have been better for Hood's case if he'd done it, even though no reporters were around to find out about it at the time. The cop couldn't remember which kid was which out of the two he'd arrested, and he was confused about where he picked them up. Hood said, so be it, and the kids were acquitted.

These are small examples, but they demonstrate how it is possible to create a legal system with room for human beings to act like human beings. I think that's what we want from our laws.

Ira Glass

Nancy Updike.

One postscript to our show today. Congress has not changed its opinion of mandatory minimums. The House and Senate both recently passed the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of 1999, which would extend more mandatory minimum sentences to more crimes, and to more crimes involving teenagers. It can go to committee and become law anytime.

Ira Glass

Well, our program was produced today by Nancy Updike and of myself with Blue Chevigny, Alex Blumberg, Susan Burton, and Julie Snyder.

[ACKNOWLEDGEMENTS]

Original piano music for today's show was composed and performed by Charles [? Misser. ?] To buy a cassette of this program, call us here at WBEZ in Chicago. 312-832-3380. Or you know you can listen to this or any of our programs for free on the internet. This American Life is distributed by Public Radio International.

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Ira Glass

I'm Ira Glass. Back next week with more stories of This American Life.

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