FEDERAL JUDGE RAPS RULES ON SENTENCING

Mullen Says Guidelines Give Prosecutors Too Much Power

Graham Mullen has sent hundreds of black men, mostly young and mostly
convicted for drugs, to prison. The federal judge in Charlotte hasn't
liked it. "I'm tired of sentencing young black men to prison," Mullen
said during a recent interview.

The 66-year-old judge doesn't intend to do that much longer. Mullen, a
judge in Charlotte and the Western District of North Carolina for 16
years, has taken senior status. That's a move akin to semi-retiring
but one that allows him to continue working at a reduced pace. It
means President Bush will be able to nominate a replacement. Mullen,
who earns $165,200 a year, is no longer accepting cases that will
require him to put anyone behind bars. Once he disposes of the more
than 150 criminal cases already assigned to him, he'll focus on civil
litigation. Mullen has contempt for the federal sentencing guidelines,
which he believes have given prosecutors more power than judges in
deciding punishments. He once said the guidelines, designed by
Congress in the 1980s to make prison terms tougher and more uniform,
would "gag a maggot." Even though the U.S. Supreme Court last year
abandoned years of federal sentencing practices, they are still in
place as advisory guidelines. Mullen doesn't shy from speaking out
about what he perceives as injustices. He's told federal prosecutors
they have a reputation of being arrogant bullies. And he's refused to
accept plea bargains that force criminal suspects to give up their
rights to appeal.

"Judge Mullen is his own man," Charlotte lawyer James Wyatt said. "He
does not care about doing anything other than what he believes is
right and fair. That doesn't always make everyone happy, and it
shouldn't." The judge's critics say he can sometimes seem hostile
toward prosecutors. "He's a bright guy and he's capable of doing very
well. But he can manipulate the law to suit his purposes," said one
former prosecutor, who didn't want his name attached to comments
critical of a federal judge. "He sometimes ignores or bends the law."

Mullen said his differences with prosecutors stem from his desire to
even the playing field between them and criminal suspects. Mullen and
then-First Assistant U.S. Attorney Kenneth Bell have had their share
of courtroom battles.

The most highly publicized involved former heavyweight boxing champion
Riddick Bowe, who in 1998 was accused of abducting his estranged wife
from her Cornelius home and transporting her and their children across
state lines into Virginia.

Bowe pleaded guilty to interstate domestic violence in a deal with
prosecutors that called for him to serve 18 months to two years in
prison. But Bell and Mullen went round and round in Bowe's sentencing.
The judge, despite the plea bargain calling for prison time, twice
gave Bowe sentences that allowed him to avoid prison. And twice, the
U.S. 4th Circuit Court of Appeals overturned the sentence and ordered
Mullen to resentence Bowe. Mullen eventually sentenced Bowe to 18
months in prison. Mullen talked recently for the first time about why
he kept allowing Bowe to avoid prison. The judge said he takes
domestic violence seriously but questions whether Bowe should have
been prosecuted.

"He's a proud man who was told by his mother-in-law that a real man
would go down there and get his wife and family and bring them back,"
Mullen said. "And that's what he did."

"Judge Mullen and I have had our battles over the years," Bell said.
"Sometimes I was able to persuade him what the law was, sometimes not.
But I think most attorneys and defendants believe they were treated
fairly in his courtroom."

Charlotte lawyer Pete Anderson, a former federal prosecutor who also
was Mullen's law clerk in the early 1990s, called his former boss "a
great teacher, a wonderful mentor and a true friend."

As a law clerk, Anderson said Mullen taught him the importance of
credibility. As a prosecutor, the judge reminded him about exercising
sound judgment, mercy and restraint. And as a defense lawyer, the
judge inspired him to remain ever-vigilant in protecting his clients.
"He has that rare ability to temper justice with mercy," Anderson
said. "That's my kind of judge."

In 2003, Mullen surprised many in the legal community by announcing he
would no longer accept most plea agreements. He said the agreements,
which forced criminal suspects to give up their rights to appeal, were
unconscionable. A few months later, prosecutors and defense lawyers
reached a compromise that gave defendants more rights to appeal.

As the keynote speaker at a 2002 U.S. Attorney's Office retreat in
Boone, Mullen's bluntness shocked and angered prosecutors. He told
prosecutors never to lie or shade the truth. "A lying law enforcement
officer," he warned, "is as much a slime dweller as any criminal
defendant." The judge said prosecutors have so much unchecked power
that there's a temptation to use it to bulldoze. "Don't run over
people just because you can," he said.

Mullen knew his talk would anger prosecutors. "The message I was
trying to get across was 'beware of Lord Acton's axiom that power
tends to corrupt. And absolute power tends to corrupt absolutely,' "
the judge said. "There are judges who ought to get that same message."
Mullen's biggest frustration has been how the sentencing guidelines
took away judges' power to impose what they believe are fair
punishments. "These sentencing guidelines weren't guidelines at all,"
the judge said. "They were mandated sentences. Sentencing required no
judicial exercise." Mullen has complained before that following the
guidelines meant he had to send blacks to prison for decades for
crimes involving crack cocaine. He pointed out that those crimes carry
tougher penalties than powder cocaine and that many blacks are charged
with crack cocaine crimes. "The drug laws of this nation are
draconian," Mullen said. "Sentences have had a disproportionate impact
on young black men.

"I've sent too many black men to prison for 20 or 30 years or life. As
a judge, I had no power to do anything other than what was called for
in the sentencing guidelines."

Mullen wrote the preface for the Georgetown Law Journal's 2004 Annual
Review of Criminal Procedure. He didn't hide his scorn for the
sentencing guidelines.

"I will retire from the field soon," he wrote, "as I can no longer
stomach the gross injustices I am required to announce. Senior status
beckons in the near future and offers the ability to avoid criminal
cases." Talking Tough to Prosecutors Graham Mullen, nominated to the
federal bench in 1990 by the first President Bush, is known for his
outspokenness. He had some blunt warnings for prosecutors at a 2002
U.S. Attorney's Office retreat: On pursuing convictions in court: "If
you define excellence as prosecuting every case that passes through
your quality screen pursuing a win-a-conviction-at-all-cost and a
maximum sentence, then we have a conceptual cognitive
dissonance."

On how federal prosecutors are perceived: "Your office is perceived as
acting like arrogant bullies who over-indict, always believe snitches,
threaten defendants who seek release on bond, always seek to get the
max and go for the jugular."

On federal sentencing guidelines: "I am only performing a ministerial
function -- indeed only slightly more than a clerical function at
sentencing. Frankly, the sentencing guidelines would gag a maggot. ...
You now determine the sentence. Not me. Your power has become all but
absolute."