More Than They Deserve

Judges Protest Mandatory Sentencing In Drug Cases

The population in federal prisons has quadrupled from 43,000 inmates in 1987 to 173,000 today - at a cost to taxpayers of $4 billion a year.

How did that happen? In the wake of the cocaine epidemic of the 1980s, Congress passed harsh sentencing guidelines and mandatory-minimum sentencing laws - requiring federal judges in most cases to impose long jail terms on anyone convicted of drug trafficking, no matter how small their crime.

But now, objections to the drug laws are coming from an unexpected source - federal judges themselves. Normally reluctant to speak out on political matters, federal judges by the dozens have protested harsh drug laws.

They contend the laws force them to send some people to prison who don't belong there, and others for many more years than they deserve. Correspondent Ed Bradley reports.

The overwhelming majority of inmates convicted of drug trafficking are small fry in the narcotics trade. Most are people with no track record of violent criminal behavior, like Brenda Valencia.

In 1991, Valencia was a 19-year-old former high school athlete in Miami who'd never been in trouble with the law until she gave a ride to her roommate's stepmother. Brenda knew the woman was a drug dealer and knew she was going to West Palm Beach to pick up money from a cocaine dealer.

Why didn't she walk away?

"I've asked myself that question a million times. But honestly, I wasn't even thinking about that day. I just made a very immature and quick decision," says Valencia. "I didn't even think twice about it. Because even though I knew what she did, in my mind I felt I had nothing to do with it."

In West Palm Beach, federal drug agents arrested Valencia, the woman she gave a ride to, and the two men who set up the deal. Prosecutors charged Valencia with being part of a cocaine conspiracy, and federal law required the judge to sentence her to at least 12 years and 7 months in prison. But he wasn't happy about it, and wrote, "Even the low end of the guideline range is an outrage in this case..."

"As a 19-year-old, I should have known better, and I should never have gotten involved in it to begin with," says Valencia. "But I don't feel that the time I received was a just punishment."

Neither does Joe Bogan, who, for 18 years, was a warden the federal prison system, and spent six years at a penitentiary in Fort Worth, Texas. Bogan says Valencia's case is not unusual.

"You could go in here and you could find hundreds of cases that would make the same point. Maybe the cases wouldn't be quite as minimally involved as she was, but you would find cases where, you know, if people thought about it, this is what happened to this woman, this is what she did, she ends up with 15, 20, 30 years," says Bogan.

"It's not fair. It's not just. I mean, if you look back here in this prison, there are maybe 1,400 inmates, and there are probably 700-800 of them could be out. And their sentences would still be just. It would still hold them accountable for their criminal conduct. Our sentences are just too long in this country."

Last spring, Congress passed a law that makes it even harder for a federal judge to impose a lighter sentence when that judge feels it is called for. That was too much for Judge John Martin, a former prosecutor and a Republican appointee to the federal district court.

"Judges throughout the country, of all political persuasions, feel that they have to have discretion so that they can do justice in the individual cases," says Martin, who is resigning from the bench.

"It is unjust. It's taking people who are low-level violators and putting them in jail for 15-20 years. I had a situation where a defendant was an addict. He sat on his stoop. People came to him and said, 'Do you know where I can buy some crack?' He told them about an apartment where there was crack being sold. For this, the people who sold it every once in a while gave him some crack for his own personal use. The guideline range for that man was 16 years in jail. That doesn't seem to me like justice."

But aren't they reducing the sale of drugs by taking the drug dealers off the street?

"No, if you take some narcotic addict who is sitting on a stoop selling drugs, if he goes off to jail, there's a person to replace him within a nanosecond," says Martin.

In 1986, when he was the lead attorney for the House Subcommittee on Narcotics, Eric Sterling helped write the mandatory-minimum drug legislation. Sterling has left Congress and is now working to change the drug laws.

"This has been the worst legislation I've ever been involved with," says Sterling. "And it's probably the worst thing I've ever done professionally, as a lawyer. This was the hastiest thing, the most unusual thing I've ever been involved in on Capitol Hill."

What was the rush? Back then, images of drug busts dominated TV news. The war on drugs was the No. 1 issue on the minds of Americans. But it was the fate of a celebrated basketball player that got the tough drug laws passed.

Len Bias, a star at the University of Maryland, died of a cocaine overdose just after he was selected as the top draft pick of the Boston Celtics. For legislators, in search of an issue for the midterm election, Bias' shocking death was just the ticket.

"They knew Len Bias and when he died it set off a kind of media political frenzy on Capitol Hill," says Sterling. "It was like a heated Sotheby's auction where everyone was trying to be tougher than the next guy."

In those days, Congressman Bill McCollum was one of the toughest guys in favor of stricter drug laws - and he makes no apologies for it.

You'd had a lot of deaths from this stuff. And people wanted to send a strong message: to get it off the streets as much as possible and say "By golly, you deal in this stuff, you're going to jail for a long period of time." And it didn't take a large quantity to cause that death or to cause that problem.

The federal judges that 60 Minutes has spoken with say that the great majority of the people they sentence for drug crimes are at the bottom of the totem pole, and not in any way the higher-ups.

"You know what we have a problem with? It's recidivism. When people commit these crimes, they get back out on the streets. They'd do it over and over again," says McCollum. "And so you're going to have 'em back on the streets dealing, even more dealers. So the idea of lesser sentences makes no sense to me at all."

But will this really serve as a deterrent?

"They're bound to be people out there who are deterred from doing this because of the jail time they're going to get. And there are some people who aren't. I think the idea of characterizing these people as small fry is a terrible characterization," adds McCollum. "It's a misnomer. Yeah, they may be comparatively smaller in terms of the quantity of drugs they're selling, but they're still major drug dealers and traffickers."

Patrick Murphy, the chief judge of the federal district court in East St. Louis, Ill., doles out long sentences nearly every week to drug dealers and traffickers.

He says those sentences haven't helped in his district: "You're in East St. Louis. East St. Louis is crime-ridden, poverty-stricken, violent, dirty, dangerous, and here the sentences are the longest and the hardest anywhere in the federal judiciary … Here, prosecutions happen regularly. Sentences are meted out long and hard. Hardest sentences in the United States, right here."

What would he say to someone who claims that these tough mandatory sentences are taking drug kings and putting them out of business by locking them up in prison?

"What passes for a drug king in 99 percent of the cases is nothing more than a young man who can't even afford a lawyer when he's hauled into court. I've seen very few drug kings," says Judge Murphy.

What he does see, however, is defendant after defendant like Brenda Valencia, who served 11 years of a 12 year - 7 month sentence for giving a drug dealer a ride - twice as many years as she would have gotten if she'd killed someone and been convicted of manslaughter.

Some drug traffickers do get lighter sentences by agreeing to testify against other traffickers. Why didn't Valencia's lawyer try to make a deal in her case?

"The other two people were already cooperating with the government. So they had the people they needed to cooperate," says Valencia. "And I didn't know anything, and I couldn't give the government any information."

"The people with the least culpability haven't had any information to trade to the prosecutor for a reduced sentence, but the people who were more culpable, they've got lots of information, they trade it," says Bogan. "So you've got the less culpable getting maybe 10-15 years and the more culpable getting five. Again, it's not just."

If you look at the government's own figures, it had 12 million illegal drug users in 1991. Now, there are 19 million, so it's gone up after a decade of tough sentences by 7 million drug users.

"If we didn't have those tough sentencing laws, you'd have a whole lot more people than 19 million on drugs," says McCollum. "It would be worse today if we didn't have them. Far worse."

These drug laws were created to protect kids from drug dealers. But Sterling argues that we're not doing this at all.

"This doesn't work to protect kids," says Sterling. "When you look at what kids say, 'How hard is it for you to get drugs, easy or hard?' We've been asking the same question of samples year after year, and now kids say it's easier to get heroin, marijuana, cocaine then ever. That's not protection."

Even conservatives on the Supreme Court are saying that Congress has gone too far. Last August, Supreme Court Justice Anthony Kennedy, a Reagan appointee, told the American Bar Association, "I accept neither the wisdom, the justice, nor the necessity of mandatory minimums."

In all too many cases, he said, they are unjust.