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