Against his better judgment
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| In the meth corridor of Iowa, a federal
judge comes face to face with the reality of congressionally
mandated sentencing |
| By Eli Saslow |
The Washington Post |
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 They filtered into the courtroom and waited
for the arrival of the judge, anxious to hear what he would
decide. The defendant’s family knelt in the gallery to pray for
a lenient sentence. A lawyer paced the entryway and rehearsed
his final argument. The defendant reached into the pocket of his
orange jumpsuit and pulled out a crumpled note he had written to
the judge the night before: “Please, you have all the power,” it
read. “Just try and be merciful.”
U.S. District Judge Mark Bennett entered and everyone stood. He
sat and then they sat. “Another hard one,” he said, and the room
fell silent. He was one of 670 federal district judges in the
United States, appointed for life by a president and confirmed
by the Senate, and he had taken an oath to “administer justice”
in each case he heard. Now he read the sentencing documents at
his bench and punched numbers into an oversize calculator. When
he finally looked up, he raised his hands together in the air as
if his wrists were handcuffed, and then he repeated the
conclusion that had come to define so much about his career.
“My hands are tied on your sentence,” he said. “I’m sorry. This
isn’t up to me.”
How many times had he issued judgments that were not his own?
How often had he apologized to defendants who had come to
apologize to him? For more than two decades as a federal judge,
Bennett had often viewed his job as less about presiding than
abiding by dozens of mandatory minimum sentences established by
Congress in the late 1980s for federal offenses. Those mandatory
penalties, many of which require at least a decade in prison for
drug offenses, took discretion away from judges and fueled an
unprecedented rise in prison populations, from 24,000 federal
inmates in 1980 to more than 208,000 last year. Half of those
inmates are nonviolent drug offenders. Federal prisons are
overcrowded by 37 percent. The Justice Department recently
called mass imprisonment a “budgetary nightmare” and a “growing
and historic crisis.”
Politicians as disparate as President Obama and Sen. Rand Paul
(R-Ky.) are pushing new legislation in Congress to weaken
mandatory minimums, but neither has persuaded Sen. Charles E.
Grassley (R-Iowa), who chairs the Senate Judiciary Committee
that is responsible for holding initial votes on sentencing
laws. Even as Obama has begun granting clemency to a small
number of drug offenders, calling their sentences “outdated,”
Grassley continues to credit strict sentencing with helping
reduce violent crime by half in the past 25 years, and he has
denounced the new proposals in a succession of speeches to
Congress. “Mandatory minimum sentences play a vital role,” he
told Congress again last month.
But back in Grassley’s home state, in Iowa’s busiest federal
court, the judge who has handed down so many of those sentences
has concluded something else about the legacy of his work.
“Unjust and ineffective,” he wrote in one sentencing opinion.
“Gut-wrenching,” he wrote in another. “Prisons filled, families
divided, communities devastated,” he wrote in a third.
And now it was another Tuesday in Sioux City — five hearings
listed on his docket, five more nonviolent offenders whose cases
involved mandatory minimums of anywhere from five to 20 years
without the possibility of release. Here in the methamphetamine
corridor of middle America, Bennett averaged seven times as many
cases each year as a federal judge in New York City or
Washington. He had sentenced two convicted murderers to death
and several drug cartel bosses to life in prison, but many of
his defendants were addicts who had become middling dealers,
people who sometimes sounded to him less like perpetrators than
victims in the case reports now piled high on his bench.
“History of family addiction.” “Mild mental retardation.” “PTSD
after suffering multiple rapes.” “Victim of sexual abuse.”
“Temporarily homeless.” “Heavy user since age 14.”
Bennett tried to forget the details of each case as soon as he
issued a sentence. “You either drain the bathtub, or the guilt
and sadness just overwhelms you,” he said once, in his chambers,
but what he couldn’t forget was the total, more than 1,100
nonviolent offenders and counting to whom he had given mandatory
minimum sentences he often considered unjust. That meant more
than $200 million in taxpayer money he thought had been
misspent. It meant a generation of rural Iowa drug addicts he
had institutionalized. So he had begun traveling to dozens of
prisons across the country to visit people he had sentenced,
answering their legal questions and accompanying them to drug
treatment classes, because if he couldn’t always fulfill his
intention of justice from the bench, then at least he could
offer empathy. He could look at defendants during their
sentencing hearings and give them the dignity of saying exactly
what he thought.
“Congress has tied my hands,” he told one defendant now.
“We are just going to be warehousing you,” he told another.
“I have to uphold the law whether I agree with it or not,” he
said a few minutes later.
The courtroom emptied and then filled, emptied and then filled,
until Bennett’s back stiffened and his robe twisted around his
blue jeans. He was 65 years old, with uncombed hair, a relaxed
posture and a midwestern unpretentiousness. “Let’s keep moving,”
he said, and then in came his fourth case of the day, another
methamphetamine addict facing his first federal drug charge, a
defendant Bennett had been thinking about all week.
His name was Mark Weller. He was 28 years old. He had pleaded
guilty to two counts of distributing methamphetamine in his home
town of Denison, Iowa, which meant his mandatory minimum
sentence as established by Congress was 10 years in prison. His
maximum sentence was life without parole. For four months, he
had been awaiting his hearing while locked in a cell at the Fort
Dodge Correctional Facility, where there was nothing to do but
watch Fox News on TV, think over his life and write letters to
people who usually didn’t write back.
“I can’t tell you how many times I’ve asked myself, ‘How did I
get into the situation I’m in today?’ ” he had written.
Marijuana starting at age 12. Whiskey at 14. Cocaine at 16, and
methamphetamine a few months later. “Always hooked on something”
was how some family members described him in the pre-sentencing
report, but for a while he had managed to hold his life
together. He graduated from high school, married, had a daughter
and worked for six years at a pork slaughterhouse, becoming a
union steward and earning $18 an hour. He bought a doublewide
trailer and a Harley, and he tattooed the names of his wife and
daughter onto his shoulder. But then his wife met a man on the
Internet and moved with their daughter to Missouri, and Weller
started drinking some mornings before work. Soon he had lost his
job, lost custody of his daughter and, in his own accounting,
lost his “morals along with all self control.” He started
spending as much as $200 each day on meth, selling off his
Harley, his trailer and then selling meth, too. He traded meth
to pay for his sister’s rent, for a used car, for gas money and
then for an unregistered rifle, which was still in his car when
he was pulled over with 223 grams of methamphetamine last year.
He was arrested and charged with a federal offense because he
had been trafficking methamphetamine across state lines. Then he
met for the first time with his public defender, considered one
of the state’s best, Brad Hansen.
“How much is my bond?” Weller remembered asking that day.
“There is no bond in federal court,” Hansen told him.
“Then how many days until I get out?” Weller asked.
“We’re not just talking about days,” Hansen said, and so he
began to explain the severity of a criminal charge in the
federal system, in which all offenders are required to serve at
least 85 percent of whatever sentence they receive. Weller
didn’t yet know that a series of witnesses, hoping to escape
their own mandatory minimum drug sentences, had informed the
government that Weller had dealt 2.5 kilograms of
methamphetamine over the course of eight months. He didn’t yet
know that 2.5 kilograms was just barely enough for a mandatory
minimum of 10 years, even for a first offense. He didn’t know
that, after he pleaded guilty, the judge would receive a
pre-sentencing report in which his case would be reduced to a
series of calculations in the controversial math of federal
sentencing.
“Victim impact: There is no identifiable victim.”
“Criminal history: Minimal.”
“Cost of imprisonment: $2,440.97 per month.”
“Guideline sentence: 151 to 188 months.”
What Weller knew — the only thing he knew — was the version of
sentencing he had seen so many times on prime-time TV. He would
have a legal right to speak in court. The court would have an
obligation to listen. He asked his family to send testimonials
about his character to the courthouse, believing his sentence
would depend not only on Congress or on a calculator but also on
another person, a judge.
The night before Weller’s hearing, Bennett returned to a home
overlooking Sioux City and carried the pre-sentencing report to
a recliner in his living room. He already had been through it
twice, but he wanted to read it again. He put on glasses, poured
a glass of wine and began with the letters.
“He was doing fine with his life, it seems, until his wife met
another man on-line,” Weller’s father had written.
“After she left, the life was sucked out of him,” his sister had
written.
“Broken is the only word,” his brother had written. “Meth sunk
its dirty little fingers into him.”
“I hope this can explain how a child was set up for a fall in
his life,” his mother had written, in the last letter and the
longest one of all. “Growing up, all he pretty much had was an
alcoholic mother who was manic depressive and schizophrenic.
When I wasn’t cutting myself, I was getting drunk and beating
the hell out of him in the middle of the night. When I wasn’t
doing all that I was trying to kill myself and ending up in a
mental hospital. Can you imagine being a four year old and
getting beat up one day and having to go visit that same person
in a mental hospital the next? No heat in the house, no lights,
nothing. That was his starting point.”
Bennett set down the report, stood from his chair and paced
across a room decorated with photos of his own daughter, in the
house that had been her starting point. There were scrapbooks
made to commemorate each year of her life. There were videotapes
of her high school tennis matches and photos of her recent
graduation from a private college near Chicago.
He had decided to become a judge just a few months after her
birth, in the early 1990s. His wife had been expecting twins, a
boy and a girl, and had gone into labor several months
prematurely. Their daughter had survived, but their son had died
when he was eight hours old, and the capriciousness of that
tragedy had left him searching for order, for a life of
deliberation and fairness. He had quit private practice and
devoted himself to the judges’ oath of providing justice, first
as a magistrate judge and then as a Bill Clinton appointee to
the federal bench, going into his chambers to work six days each
week.
Since then he had sent more than 4,000 people to federal prison,
and he thought most of them had deserved at least some time in
jail. There were meth addicts who promised to seek treatment but
then showed up again in court as robbers or dealers. There were
rapists and child pornographers that expressed little or no
remorse. He had installed chains and bolts on the courtroom
floor to restrain the most violent defendants. One of those had
threatened to murder his family, which meant his daughter had
spent her first three months of high school being shadowed by a
U.S. marshal. “It is a view of humanity that can become
disillusioning,” he said, and sometimes he thought that it
required work to retain a sense of compassion.
Once, on the way to a family vacation, he had dropped his wife
and daughter off at a shopping mall and detoured by himself to
visit the prison in Marion, Ill., then the highest-security
penitentiary in the country. He scheduled a tour with the
warden, and at the end of the tour Bennett asked for a favor.
Was there an empty cell where he could spend a few minutes
alone? The warden led him to solitary confinement, where
prisoners spent 23 hours each day in their cells, and he locked
Bennett inside a unit about the size of a walk-in closet.
Bennett sat on the concrete bed, ran his hands against the walls
and listened to the hum of the fluorescent light. He imagined
the minutes stretching into days and the days extending into
years, and by the time the warden returned with the key
Bennett’s mouth was dry and his hands were clammy, and he
couldn’t wait to be back at the mall.
“Hell on earth,” he said, explaining what just five minutes as a
visitor in a federal penitentiary could feel like, and he tried
to recall those minutes each time he delivered a sentence. He
often gave violent offenders more prison time than the
government recommended. He had a reputation for harsh sentencing
on white-collar crime. But much of his docket consisted of
methamphetamine cases, 87 percent of which required a mandatory
minimum as established in the late 1980s by lawmakers who had
hoped to send a message about being tough on crime.
By some measures, their strategy had worked: Homicides had
fallen by 54 percent since the late 1980s, and property crimes
had dropped by a third. Prosecutors and police officers had used
the threat of mandatory sentences to entice low-level criminals
into cooperating with the government, exchanging information
about accomplices in order to earn a plea deal. But most
mandatory sentences applied to drug charges, and according to
police data, drug use had remained steady since the 1980s even
as the number of drug offenders in federal prison increased by
2,200 percent.
“A draconian, ineffective policy” was how then-Attorney General
Eric H. Holder Jr. had described it.
“A system that’s overrun” was what Republican presidential
candidate Mike Huckabee had said.
“Isn’t there anything you can do?” asked Bennett’s wife, joining
him now in the living room. They rarely talked about his cases.
But he had told her a little about Weller’s, and now she wanted
to know what would happen.
“Childhood trauma is a mitigating factor, right?” she said.
“Shouldn’t that impact his sentence?”
“Yes,” he said. “Neglect and abuse are mitigating. Definitely.”
“And addiction?”
“Yes.”
“Remorse?”
“Yes.”
“No history of violence?”
“Yes. Of course,” he said, standing up. “It’s all mitigating.
His whole life is basically mitigating, but there still isn’t
much I can do.”
 He could use a wake-up call. But, come on, I mean ... Ten years
is not a wake-up call. It’s more like a sledgehammer to the
face.
Brad Hansen, Weller’s public defender
The first people into the courtroom were Weller’s mother, his
sister and then his father, who had driven 600 miles from Kansas
to sit in the front row, where he was having trouble catching
his breath. He gasped for air and rocked in his seat until two
court marshals turned to stare. “Look away,” he told them. “Have
a little respect on the worst day of our lives. Look the hell
away.”
In came Weller. In came the judge. “This is United States of
America versus Mark Paul Weller,” the court clerk said.
And then there was only so much left for the court to discuss.
Hansen, the defense attorney, could only ask for the mandatory
minimum sentence of 10 years, rather than the guideline sentence
of 13 years or the maximum of life. The state prosecutor could
only agree that 10 years was probably sufficient, because Weller
had a “number of mitigating factors,” he said. Bennett could
only delay the inevitable as the court played out a script
written by Congress 30 years earlier.
“This is one of those cases where I wish the court could do
more,” said Hansen, the defense attorney.
“He’s certainly not a drug kingpin,” the government prosecutor
consented.
“He could use a wake-up call,” Hansen said. “But, come on, I
mean . . .”
“He doesn’t need a 10-year wake-up call,” Bennett said.
“Ten years is not a wake-up call,” Hansen said. “It’s more like
a sledgehammer to the face.”
“We talk about incremental punishment,” Bennett said. “This is
not incremental.”
They stared at each other for a few more minutes until it was
time for Weller to address the court. He leaned into a
microphone and read a speech he had written in his holding cell
the night before, a speech he now realized would do him no good.
He apologized to his family. He apologized to the addicts who
had bought his drugs. “There is no excuse for what I did,” he
said. “I was a hardworking family man dedicated to my family. I
turned to drugs, and that was the beginning of the end for me. I
hope I get the chance to better my life in the future and put
this behind me.”
“Thank you, Mr. Weller. Very thoughtful,” Bennett said, making a
point to look him in the eye. “Very, very thoughtful,” he said
again, and then he issued the sentence. “You are hereby
committed to the custody of the bureau of prisons to be
imprisoned for 120 months.” He lowered his gavel and walked out,
and then the court marshal took Weller to his holding cell for a
five-minute visitation with his family. He looked at them
through a glass wall and tried to take measure of 10 years. His
grandmother would probably be dead. His daughter would be in
high school. He would be nearing 40, with half of his life
behind him. “It’s weird to know that even the judge basically
said it wasn’t fair,” he said.
Down the hall in his chambers, Bennett was also considering the
weight of 10 years: one more nonviolent offender packed into an
overcrowded prison; another $300,000 in government money spent.
“I would have given him a year in rehab if I could,” he told his
assistant. “How does 10 years make anything better? What good
are we doing?”
But already his assistant was handing him another case file, the
fifth of the day, and the courtroom was beginning to fill again.
“I need five minutes,” he said. He went into his office, removed
his robe and closed his eyes. He thought about the offer he had
received a few weeks earlier from an old partner, who wanted him
to return to private practice in Des Moines. No more sentencing
hearings. No more bathtub of guilt to drain. “I’m going to think
seriously about doing that,” Bennett had said, and he was still
trying to make up his mind. Now he cleared Weller’s sentencing
report from his desk and added it to a stack in the corner. He
washed his face and changed back into his robe.
“Ready to go?” his assistant asked.
“Ready,” he said. |
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