An Agriprocessors Judge Writes About Harsh Federal Sentencing Guidelines

Judge Mark Bennett was appointed to the federal bench by President Bill Clinton in 1994 and was the chief judge of the Northern Iowa circuit before Judge Linda Reade, a Republican appointee who sentenced Rubashkin. Bennett was one of the federal judges who sentenced the undocumented workers arrested in the Agriprocessors kosher meat plant raid in May 2008. He has new opinion piece in the Nation about an aspect of the Northern Iowa circuit where Rubashkin was tried and convicted and the federal sentencing guidelines.

 

Judge Bennett is writing about mandatory sentencing minimums for certain drug crimes. The sentences for white collar non-drug crimes like Rubashkin committed no longer have mandatory minimums. Instead, sentences are recommended, and any departure from those recommended sentences by a judge has to be justified by the sentencing judge in writing and must include precedent(s), legal reasoning, and supporting data.

How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison
Judge Mark W. Bennett • The Nation

Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA. Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release. The majority of these women, men and young adults are nonviolent drug addicts. Methamphetamine is their drug of choice. Crack cocaine is a distant second. Drug kingpins? Oh yes, I’ve sentenced them, too. But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”

You might think the Northern District of Iowa—a bucolic area home to just one city with a population above 100,000—is a sleepy place with few federal crimes. You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge. Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco—combined. While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine. More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine. Add crack cocaine and together they account for 87 percent.

Crack defendants are almost always poor African-Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights. Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies—which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don’t even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months. One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”

Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

For years I have debriefed jurors after their verdicts. Northwest Iowa is one of the most conservative regions in the country, and these are people who, for the most part, think judges are too soft on crime. Yet, for all the times I’ve asked jurors after a drug conviction what they think a fair sentence would be, never has one given a figure even close to the mandatory minimum. It is always far lower. Like people who dislike Congress but like their Congress member, these jurors think the criminal justice system coddles criminals in the abstract—but when confronted by a real live defendant, even a “drug trafficker,” they never find a mandatory minimum sentence to be a just sentence.

Many people across the political spectrum have spoken out against the insanity of mandatory minimums. These include our past three presidents, as well as Supreme Court Justices William Rehnquist, whom nobody could dismiss as “soft on crime,” and Anthony Kennedy, who told the American Bar Association in 2003, “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences.” In 2005, four former attorneys general, a former FBI director and dozens of former federal prosecutors, judges and Justice Department officials filed an amicus brief in the Supreme Court opposing the use of mandatory minimums in a case involving a marijuana defendant facing a fifty-five-year sentence. In 2008, The Christian Science Monitor reported that 60 percent of Americans opposed mandatory minimums for nonviolent offenders. And in a 2010 survey of federal district court judges, 62 percent said mandatory minimums were too harsh.

Federal judges have a longstanding culture of not speaking out on issues of public concern. I am breaking with this tradition not because I am eager to but because the daily grist of what I do compels me to. In 1999, Judge Robert Pratt of the Southern District of Iowa, a courageous jurist whose brilliant opinion in Gall v. United States led to one of the most important Supreme Court sentencing opinions in my professional life, wrote a guest editorial in The Des Moines Register criticizing federal sentencing guidelines and mandatory minimums. He ended by asking, “If we don’t speak up, who will?” I hope more of my colleagues will speak up, regardless of their position on the fairness of mandatory minimum sentences for nonviolent drug offenders. This is an issue of grave national consequence. Might there be a problem when the United States of America incarcerates a higher percentage of its population than any nation in the world?

See Judge Bennett in the Sundance award-winning documentary, The House I Live In, in theaters now.

Judge Bennett's piece should give you some perspective on Sholom Rubashkin's sentence.

It should also show you why Rubashkin's attorneys fought so hard to get Rubashkin's case moved to Bennett's court.

Congress can change the guidelines. Congress can change the mandatory minimums.

But it hasn't and it won't as long as ultra-conservatives hold it hostage.

You can read more about the problems with ultra-conservatism (an American somewhat secular political equivalent to ultra-Orthodoxy in Israel) by reading the very liberal Nation Magazine.

Comments

[Yerachmiel Lopin]

Shmarya, Great find. Thank you.

[Garnel Ironheart]

I don't get it. When this trial was going on you were all but calling for the death penalty. Now you're saying that sentencing is too harsh and it's the fault of conservatives?

[Shoshi]

It's a good article, with important points. But he seems to be talking about people from unstable and impoverished backgrounds who end up needing drug treatment, and the fact that harsh sentencing isn't the answer for them or for society. I don't see this as the same issue as wealthy, white-collar criminals who remain unrepentant in prison, unlike the small-time drug dealers he describes. What am I missing?

[Shmarya]

What am I missing?

Posted by: Shoshi | October 30, 2012 at 11:17 AM

That:

1. Lots of federal prisoners are serving long, harsh sentences for non-violent crimes.

2. That those harsh sentences (and the judges who have no problems handing them down) were overwhelmingly put in place by the same Republicans haredim support – not by the Obama administration, which they reflexively blame.

3. That Rubashkin got 27 years for what he did because the guidelines called for it.

4. Rubashkin's attorneys decision not to attack the guidelines hurt Rubashkin.

5. That there is a world beyond Crown Heights, Boro Park and Williamsburg.

[Shmarya]

I don't get it. When this trial was going on you were all but calling for the death penalty. Now you're saying that sentencing is too harsh and it's the fault of conservatives?

Posted by: Garnel Ironheart | October 30, 2012 at 10:32 AM

No.

I never supported a life sentence or the death penalty or anything like it and you know it.

But I did explain the guidelines and Rubashkin's behavior – and I was proven correct about both.

What I'm saying now is that ignoramuses like you need to learn the facts, and here are some facts that put Rubashkin's sentence in its proper perspective.

[Darth Zeidah]

I just love the respect expressed here between commentators and the blog owner.

It really is a marvelous example of ohr legoyim.

[dh]

Oh please. For every "non violent " crime there was plenty of violence along the path to arrest and would have been more had the arrest not occurred. To say otherwise is to read the title of a book and think you've read it.

[Isa]

Shmarya my friend:

You have it all wrong

Did ha-Shem hear the lamentations of the banks that Rubashkin screwed ? I think not!

Ha-Shem certainly heard the Lamentations of Rubashkin's slave-workers and the tortured animals.

Don't believe that there is a G-d? OK Maybe you believe in Karma.

Now on the other hand, if Rubashkin could get worker after worker to testify he was a just boss and especially if Rubashkin got down on his hands and knees and begged for forgiveness etc etc
He would have gotten less than 12 years.

This is a case of the 'perfect storm'

[dh]

This is a case of justice.

[Shoshi]

4. Rubashkin's attorneys decision not to attack the guidelines hurt Rubashkin.

Posted by: Shmarya | October 30, 2012 at 11:29 AM

Actually, I didn't miss anything but this. Thanks.

[norm]

Very interesting article. Thanks for posting. As far as attacking the guidelines, that would have been very difficult in a petition for for cert. Scalia and Thomas at the very least would have said its a matter for the Congress.

I think the only way you'd get SCOTUS to overturn something like the guidelines is if they called for a "Jean ValJean" to be sentenced to 20 years for stealing a loaf of bread. There even the former justices might be convinced that it was crueland unusual punishment.

The point that Shamyra has consistently made, and that some readers and the entire frum community fail to understand is that Courts are set up in the country to enforce laws passed by Congress and in the case of uncertainty to interpret them. Where the law is clear, its not the job of the Courts to produce a different result because it perceives the result is "unfair". In fact when conservatives complain about liberal judges they mean that the judges are imposing what hey view the law is on parties. While a Beth Din might take into account what it perceives as basic principles of fairness that's not the way our Courts work.

Here many people including myself and Shmayra believe the believe the sentencing guildines are unfair for the same reasons thatJudge Bennett describes with respect to the meth defendants. SMR was treated appropriately and fairly in accordance with laws that were passed by congress. The laws need to be changed but not just for SMR.

[dh]

Mandatory sentencing for meth convictions doesn't destroy families, meth destroys families. That's why the sentencing judge is so often the convict's sole visitor. Illicit drugs destroy families, communities, cultures, economies, governments and commerce.

This country has swung between punishment and rehabilitation models of incarceration and always will until drugs are decriminalized or legalized and the underlying issues that precurse self medication and addiction are effectively dealt with. That won't happen until there is more money to be made from that than there is in building penitentiaries that employ a segment of society that doesn't have the skill set to do much of anything else.

[Jake24]

The point is Rubashkin's sentence wasn't rooted in anti-semitsm, it was simply the federal guidelines, like them or not that dictated his sentence for the crimes he committed.

[JessicaR]

The US has the harshest justice system in the western, industrial world. We are not a free country but increasingly a prison state.

As the relative of several chronic alcoholics and addicts, I can tell you two things:

1. Drugs are no worse than alcohol in their negative effects.

2. Prison would only make things worse for everyone: the addict and his or her family.

End the war on drugs. Put a 10-year maximum on non-violent crimes, including those committed by Rubashkin and Madoff. Insist, instead, on some form of restitution. Re-instate parole. This will give inmates an incentive to turn their lives around.

[Rebitzman]

It's funny, the fire breathing Republcan block voting black hats back a party and candidate that CANNOT support amending or eliminating these sentencing guidelines without fear if a well funded tea party challenge in the primaries for being soft on crime.........

[Rebitzman]

@JessicaR

Madoff was a bad example....... He will and should die in prison.

[dh]

Ditto Rubashkin

[JJ]

This is not a Republican vs Democrat issue, it's a sane vs insane issue. Locking a non-violent offender away for periods that are so long that he never has a chance to raise his children is cruel beyond comprehension and is a sin against God. These people deserve a chance to reflect on their behavior and reform. A year in a prison is a long time and provides plenty of opportunity to change, but 25 years? The whole life of your child? You enter young and leave an old man? All for some dumb drug addiction or a business mistake that may or may not have been actually very serious. It's too much... and the Feds don't play by the rules. They cheat the system and move every rule into the prosecution's favor. The whole thing is a sickening nightmare and I feel sorry for the young men and women who lost their entire lives to the federal justice system. A system that no longer has any credibility.

[dh]

Oh gag me with a spoon. Quell your angst and go volunteer in a prison. Reform is not in the cards. The root of the problem escapes you?

[Isa]

Madoff should only get 10 years because he did a non-violent crime.

HA!

How many people were reduced to poverty in their old age because of criminals and have to eat cat food for instance?

For drug addicts caught up in the Federal system... They must have been part of a distribution system that was poisoning other people. Otherwise its a State system where even Texas will parole after half the sentence.

[Shmarya]

A year in a prison is a long time and provides plenty of opportunity to change, but 25 years? The whole life of your child? You enter young and leave an old man? All for some dumb drug addiction or a business mistake that may or may not have been actually very serious

Sholom Rubashkin did not commit a "business mistake."

He laundered money through Jewish charities to deceive his lenders, and cheated and stole in copious other ways, as well.

[s]

look at book reviews of the book; "Oelwein; Methland". On sites like Amazon.com one might be able to "look inside the book". It is a small town in Iowa north of Waterloo and south of Decorah/Postville that was affected by meth. If I remember it right the author said many were people whose salaries were decreased when companies went out of business (transferred work to Mexico?) and they then worked longer hours for lower wages. Some used meth for the stamina to do this.

[WoolSilkCotton, rock star and sports superstar]

How would you get Rubashkin to "make restitution" when he denies any wrongdoing and says he has no money?

And how would Madoff "make restitution"? Most of the money he stole has disappeared forever.

[Meandotherslikeme]

@shmaya

So what do you believe.
How many years does Sholom deserve? 2-3 or 25? Or somewhere in between? And if in between, about how many years?

Be honest. People will see your response and if you don't respond people will see that as well

[Shmarya]

@shmaya

So what do you believe.
How many years does Sholom deserve? 2-3 or 25? Or somewhere in between? And if in between, about how many years?

Be honest. People will see your response and if you don't respond people will see that as well

Posted by: Meandotherslikeme | October 31, 2012 at 05:46 AM

I believe you are an idiot.

I've answered your moronic 'gotcha' question many times previously.

Under current law, he deserves 22 to 30 years.

If the sentencing guidelines are changed and he were to be sentenced under them, he would probably get 12 to 15 years.

[meandotherslikeme]

@shmarya

thanks for the compliment.

My question was pretty clear, how many years do YOU think he should get, put all the guidelines aside.

its a personal question to you. what do YOU think?

[Shmarya]

Posted by: meandotherslikeme | October 31, 2012 at 09:43 AM

I've answered that question a dozen times previously and I'm not interested in playing your infantile games.

Rubashkin laundered money as the head of a conspiracy to defraud his lenders.

That is not a business mistake – it is a series of coordinated federal crimes.

And he's serving a long prison sentence as a result.

And the sooner you accept those facts, the better it will be for you, your community – and for Rubashkin.

[meandotherslikeme]

answer the question like a strainght man.

how many years do you think he deserves?

[state of disgust]

The law is blind - in other words it is not prejudiced by social rank, religious belief or income.
Rubashkin was treated just as any other felon caught cheating. He received the sentence requested under the guidelines by the prosecutor and then had two years added to his sentence for committing perjury on the stand. He was covicted under the same statutes as Madoff and received a sentence commensurate with the severity of his crime.

[Shmarya]

answer the question like a strainght man.

how many years do you think he deserves?

Posted by: meandotherslikeme | October 31, 2012 at 11:46 AM

You're an infantile POS.

I'd say a minimum of 6 plus 2 for perjury, mandatory restitution, the fine he got, and 15 years of closely supervised release.

And none of this changes the fact that he stole and conspired to steal millions of dollars and used Jewish charities he controlled to launder money in that scheme.

And the sooner that tiny little mind of yours learns how to process that, the better.

[dh]

mean dot, turn that frown upside down. Try and be a nice dot.

I'm sure that was a typo. Certainly Shmarya meant 16, not 6. He should be doing 6 for the perjury alone.

[sadisticstevestrong]

Has it occurred to anyone having some beef with the sentencing guidelines that they should address their concerns to the legislature since the courts are bound to follow the law the legislature implements?