Judge Myron Bright tells it right

A concurring but separate opinion in US v Roberto Gallardo Chavez, US Court of Appeals (8th Cir, No. 00-1404, filed October 20, 2000)

I concur (in the affirmation of conviction) but write separately to once again express my view that the sentences imposed by the Sentencing Guidelines are often a waste of time and money. The sheer irrationality of the Sentencing Guidelines is graphically demonstrated by this case. What we have here is a forty-one-year-old man of Mexican descent and citizenship who has been heavily involved in drug trafficking but has committed no prior violent crimes. The district court followed the Guidelines and sentenced Chavez to life imprisonment.

Chavez has a life expectancy of seventy-eight years*. That means he will probably spend thirty-five years in federal prison. It costs the United States government and its taxpayers approximately $22,000 per year** to keep a federal offender in prison. Therefore, it will cost the taxpayers $836,000 for his incarceration.

This sentence is a waste of time, money, and more importantly, a man's life. These unwise Sentencing Guidelines put nonviolent offenders in prison for years and ruin the lives of the prisoners and their families. They also hurt our economy and our communities by draining billions of dollars from the taxpayers and keeping potentially productive members of society locked up. The 'opportunity' costs imposed by the Sentencing Guidelines are staggering.

A brief look at the federal prison population reveals the terrible dilemma facing America's drug war strategy. Our federal prisons are exploding. Our ninety-seven federal prisons cannot contain the 143,218 incarcerated men and women. In fact, 18,551 prisoners are housed in contract facilities. Today, 62,852 men and women are incarcerated in federal prisons for drug crimes. That means we spend $1,382,744,000 every single year to keep our federal drug offenders in federal prison. Unfortunately, the problem is getting worse. In 1970 16.3% of federal prisoners were drug offenders. Today, 57% of federal prisoners are drug offenders***. What an awful waste.

America's drug war is an ill-fated attempt to overcome the economic axiom that supply will meet demand. Right now we are fighting the drug war primarily on one front, the supply side. We hope to eliminate drugs by eliminating the suppliers. We should consider fighting demand with greater conviction by fighting addiction. As long as there is a demand for drugs, some will brave the terrible risks and supply the drugs. Chavez took a risk and he will pay with his life. The United States will pay too.

Chavez' sentence is draconian and, even though it punishes him, it also punishes the American taxpayer. It would be more sensible to give Chavez a stiff, but shorter, sentence and to then promptly deport him to Mexico, as an example to other would-be drug dealers. Instead, the Sentencing Guidelines leave our hands tied. We are left with a tragic waste of a man's life, the irrational waste of the taxpayer's money, and an incredible 'opportunity' cost to the entire community.

I expressed my views concerning a similar situation where a lesser sentence was imposed on a younger Mexican man in United States v. Alatorre, 207 F.3d 1078, 1079 (8th Cir. 2000) (Bright, J., concurring).

Two outstanding law professors, Marc L. Miller and Ronald F. Wright, who have intensely and thoroughly studied the Sentencing Guidelines, got it exactly right writing an article in the Buffalo Criminal Law Review. I quote them in part:

"It is hard to know where to begin in describing the disaster that has become federal sentencing reform over the past twenty years. This disaster is all the more disheartening because the reform started with so much promise. Few reform efforts - especially in the area of criminal justice, particularly the federal system - have had as much hope or thought at their core.

However, the sentencing guidelines that emerged from the new administrative process have been one of the great failures at law reform in U. S. history. The collapse was quick, and it has become difficult to defend the current system as the reasoned and principled system we believe Congress and reformers envisioned. The current guidelines are widely hated and in many ways dysfunctional. The expert agency that creates and monitors the guidelines-the U. S. Sentencing Commission -has morphed into an ineffectual caricature of an administrative agency.

Rather than achieving honest, wise or equal sentencing, the primary effects of the guidelines (albeit in conjunction with other developments) have been to occupy increasing portions of the federal judicial workload. These effects have raised the analysis of probation officers above the arguments of lawyers and the reasoning of judges, shifted the type of offenders in the federal system, shifted offenders from state to federal systems, and poured offenders into federal prisons for longer and longer periods. How could such a thoughtful effort go so terribly wrong?" [Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart(land): The Long Search for Administrative Sentencing Justice, 2 BUFFALO CRIM. L. REV. 723, 723, 726 (1999)].****

In Alatorre, I asked, "Is anyone out there listening?" If not, isn't it about time?

* See Vital Statistics of the United States, 1997, Life Tables for Males, Vol. 47, No. 28 National Center for Health Statistics, U.S. Department of Health and Human Services, 1999, Table 2, p. 8. of 6 10/26/00 2:46 PM

** 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, $58.50, is the system-wide average [daily] 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, United States Department of Justice, and Federal Bureau of Prisons to the Honorable Myron H Bright (July 6, 1995), on file with Judge Bright.) Undoubtedly, these costs have increased over the past six years and may well continue to increase in the future.

*** Federal Bureau of Prisons, Quick Facts, (last modified July, 2000) http://www.bop.gov.

**** Marc Miller is professor of law at Emory Law School, and founding editor of the Federal Sentencing Reporter (Vera Institute/University of California Press). Ronald Wright is professor of law at the Wake Forest University School of Law. Miller and Wright are the editors of Criminal Procedures: Cases, Statutes, and Executive Materials (1998).

(Special thanks to Kyle Lindquist for sending Judge Bright's opinion to the Razor Wire.)