Judge Myron Bright
Excerpt from 61 FEDERAL REPORTER, 3d SERIES pg 1363-1366
Accordingly, we affirm Henry's conviction and the sentence of twenty-one years eight months of imprisonment. In addition, we affirm Hiveley's sentence of nineteen years six months of imprisonment.
BRIGHT, Senior Circuit Judge, concurring.
I concur but add my separate views concerning the sentence imposed on Hiveley as well as comment on the sentence imposed on his codefendant Henry. This case is the paradigm of what judges often see in the sentencing of drug law offenders. In this case, the sentences are excessively long, but required by the mandatory minimum sentencing provisions and the overlaying requirements of the federal sentencing guidelines.
These unwise sentencing policies which put men and women in prison for years, not only ruin lives of prisoners and often their family members, but also drain the American tax-payers of funds which can be measured in billions of dollars. In these times, the government, Congress and the President see the need to make drastic cuts in the federal budget, including budget cuts which already affect the poor, the disadvantaged and the elderly. This is the time to call a halt to the unnecessary and expensive cost of putting people in prison for a long time based on the mistaken notion that such an effort will win "The War on Drugs." If it is a war, society seems not to be winning, but losing. We must turn to other methods of deterring drug distribution and use. Long sentences do not work and, as I demonstrate below, penalize society.
Let's look at the present case. Ansil Ezra Henry is forty-four years of age and has had no prior serious criminal convictions; only three prior misdemeanor-type crimes which called for small fines or probation. Henry cannot read or write. Henry was such a "dangerous" offender than pending trial, Magistrate Judge John A. Jarvey, a fine jurist, released Henry on his own recognizance. Without question, Henry deserves prison. But, I doubt that any reasonable judge would sentence him to more than twenty-one years in prison as was required by the applicable guidelines. Essentially, the way the guide-lines operate in practice, non-judicial persons in reality send people to jail. The usually zealous prosecutor determines how to charge the offender, and the probation officer calculates the numbers for the judge, i.e., for Henry a total offense level score (38) and criminal history points (3). The judge then sentenced this offender by the numbers, which measured not necessarily his culpability but the weight of the drugs attributable to the conspiracy of which the defendant was a member. In this case, the weight was heavy.
Henry will reach nearly sixty-five years of age as a federal prisoner if he survives his prison term. He will probably leave prison as a geriatric patient at a likely further cost to society. Moreover, the cost of his care in prison will likely increase over that of other more youthful prisoners, as Henry spends his older years behind bars.
Let's look at Hively, the second defendant. He had grown up on an Iowa farm. He is forty-eight years of age and apparently operated a ranch near Phoenix, Arizona where drugs were stored and distributions made. Although Hiveley had some brushes with the law, particularly in his juvenile years, he has zero criminal history points. Here too in pretrial Magistrate Judge Michael Mignilla released this "dangerous" criminal on his own recognizance. The district court sentenced Hiveley to nineteen and one-half years in prison. When released he will be an aged person. I doubt that any reasonable judge would have sentenced these offenders to more than ten years incarceration and most probably to less, given their limited criminal history.
What does the excess time in jail mean to taxpayers? In today's economy it costs about $22,000 per year to put a federal offender in a federal prison (about the same cost as a year at a private college). 3
If each of these defendants serve ten years longer than necessary, taxpayers pick up a bill for twenty years (both offenders) at about $440,000. But that is only an infinitesimal portion of the financial burden imposed by excessive sentences often required by mandatory minimum sentences and the concomitant guidelines.
The United States Department of Justice on February 4, 1994 released an analysis of drug offenders only with minimal criminal histories, entitled An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories. The analysis disclosed that 16,316 federal prisoners could be deemed low-level drug violators. 4 That figure is 36.1% of all drug offenders. The average sentence of low-level offenders was 6.8 years, meaning that these individuals will actually serve an average of five and three-quarter years.
Moreover the study also revealed:
In this writer's opinion based on hearing many drug cases on appeal over twenty-seven years, it is doubtful that heavy sentences for low-level drug offenders have aided the war on drugs. It has only increased the cost to the public. What is the cost? Based, again on average cost of housing prisoners in fiscal 1995 at about $22,000 a year, an extra year's incarceration of the low-level offender (16,316) is $358,952,006 (almost $369 million).
If these same low-level drug offenders serve an extra five years of imprisonment over what is a proper, non-guideline, sentence, the cost to the taxpayers exceeds one and three-quarters billion dollars ($1,794,760,000.00). And still that is only part of the story.
The Federal Judicial Center in 1994 did a study on the effect of mandatory minimums and current guideline sentencing. I quote from this study:
We know from previous work by the Bureau of Prisons that 70% of the prison growth related to sentencing since 1985 is attributed to increases in drug sentence length. "Drug law offenders alone are consuming three times more resources than all other federal crimes combined . . . unless Congress and the Sentencing Commission change drug sentences, relief will be nowhere in sight. The prison population could reach 110,000 by 1997, two-and-a-half times what it was in 1987, at a yearly operating cost of well over $2 billion." The average annual cost of incarceration is $20,747 per prisoner. Construction of new prison space is, of course, an additional expense. Federal, Judicial Center, The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Finding, p. 9 (1994).
As noted, the increases in drug sentencing length require more prisons. Twelve new federal prisons are now under construction and will increase federal prison beds by 19,575. Their cost is over one billion dollars-to be exact, $1,188,000,000. (Hawk letter, July 6, 1995, p. 2)
Again, this is only part of the story. As an appellate judge, I have seen draconian sentences meted out in drug cases where an offender has had no contact with any drugs but may be only a minor functionary in a drug conspiracy where heavy amounts of drugs could be involved. See United States v. Montanye, 962 F.2d 1332 (8th Cir. 1992), reg'g granted, vacated and reg'g in part, 966 F.2d 190 (8th Cir. 1993) (where the offender provided glassware usable to manufacture amphetamines and received a sentence of thirty years in the federal penitentiary).
Federal judges who sentence offenders know the problem. 86.4% of district judge support changing the current sentencing rules to increase the discretion of the judge; 70.4% support repealing most of all mandatory sentencing and 82.8% of all district judges feel that federal judges would be appropriate decision makers about the nature and severity of sanctions to be imposed in criminal cases. More than half would eliminate sentencing guidelines. Federal Judicial Center, Planning for the Future: Results of a 1992 Federal Judicial Center Survey of United States Judges (1994).
These are not "soft headed judges". They serve on the front lines of the criminal justice system and know of what they speak. They represent appointees of every president from Eisenhower to Clinton. But the law makers and law enforcers, Congress and the administration, seem to turn a deaf ear to the problem and to the unnecessary, immense cost to the taxpayer of unnecessary lengthy incarceration of drug offenders.
I think it can be said that judges are vitally concerned with the drug problem in America. Reason, not emotion, must be brought to bear on the subject. What are judges to do about these unreasonable sentencing rules with which we must apply? I suggest that we must try to make our views known loudly and clearly.
As for this writer, I intend to cite to this opinion and its addendum in every drug case where I believe the present system requires the sentencing judge to impose an unreasonable sentence. I would urge my fellow judges, similarly, to speak out and to write opinions on this subject. The public needs to know that unnecessary, harsh and unreasonable drug sentences serve to waste billions of dollars without doing much good for society. We have an unreasonable system. 5
The message judges, district and circuit, can send Congress and the President i this: If you want to save billions for the country without harming anyone, take a look at and change the rules of sentencing now in the federal courts. If we speak with a united voice perhaps they, and the public will listen.
3. In Fiscal 1994, it cost an average of $58.50 per day to house an inmate in a federal institution. The average annual amount was $21,352. The cost varies depending upon the security level of the institution in which an inmate is confined, as well as the geographic location of the facility. The figure of $58.50 is the system-wide average cost. In Fiscal 1995, we estimate the average cost per day per inmate will be $60.26, with an average annual amount of $21,995. Letter from Kathleen M. Hawk, Director, U.S. Department of Justice, Federal Bureau of Prisons to the Honorable Myron H. Bright (July 6, 1995) (on file with Judge Bright).
4. The study by the Department of Justice defined low-level drug offenders as follows:
In this study, we have examined information on low-level drug law violators. By low-level drug low violators, we mean, essentially, non-violent, offenders with minimal or no prior criminal history whose offense did not involve sophisticated criminal activity and who otherwise did not present negative characteristics which would preclude consideration for sentence modification. U.S. Dept. of Justice, An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories, p. 6 (1994) (footnote omitted).
5. I have written other commentaries on the guidelines. See, e.g. United States v. Griffin, 17 F.3d 269, 273 (8th Cir. 1994) (Bright J., dissenting) (addressing the myth of consistency in sentences under the Guidelines and commenting on the obvious unfairness of mandatory minimum sentences); United States v. Goebel, 898 F.2d 675, 679 (8th Cir. 1990) (Bright, J., concurring) (observing that the Sentencing Guidelines produce disparate and unfair sentencing results among similar offenders); United States v. O'Meara, 895 F.2d 1216, 1221 (8th Cir.) (Bright, J., dissenting), cert. denied, 498 U.S... 943, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990) ("This case opens the window on the sometimes bizarre and topsy-turvy world of sentencing under the Guidelines.")
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