CONGRESS SHOULD RECONSIDER FEDERAL SENTENCING GUIDELINES

I have been a Federal Judge for 26 years and have had the misfortune
of sentencing many low-level drug offenders to long prison terms.

I feel compelled to respond to the op-ed, "Mandatory Minimum Sentence
Laws Keep Crime Down," featured in The Journal recently, written by
United States Attorney Charles W. Larson Sr. Under Canon 4 of the
"Code of Conduct For United States Judges," a judge may speak, write,
and participate in activities concerning the law, the legal system,
and the administration of justice.

Mr. Larson's article starts out by saying that, "The 'tough'
sentencing laws promulgated by Congress, including mandatory minimum
sentences, have dramatically increased the safety of our citizens." He
cites no authority for that premise because there is none. His
conclusion lacks support.

The "drug war" started many years ago and has not been won. Here in
Iowa, it is quite a bit worse than it used to be. These are the same
years since the tough sentencing laws started.

Mr. Larson's op-ed piece says that, "The tough sentences and mandatory
minimum sentences are used for particularly dangerous crimes such as
preying on children (I have had just one case like that in all my
years as a judge) ... these tough sentences ensure that the worst
criminals stay behind bars and that this makes would-be offenders
think twice about risking long-term sentences." The trouble with that
conclusion is that it does not include drug addicts who can't control
their actions.

In our Court, we see few "violent" defendants who could be classified
as "worst criminals." It is particularly spurious that he concludes
the federal sentencing policy is responsible for the 30-year low in
America's crime rate; because in 2000, just 6 percent of the 984,000
felony convictions nationwide were in federal court. Mr. Larson says
that, "Congress has enacted provisions that exempt low-level,
non-violent drug offenders from mandatory minimum sentences." This is
called the "safety valve" provision.

The Department of Justice is very aggressive in trying to block anyone
who might profit by the "safety valve" situation.

In U.S. v. Langmade, Judge Manguson of Minnesota encountered a
situation he could not stomach.

Langmade was in court for conspiracy to manufacture methamphetamine,
which calls for a 120-month mandatory minimum sentence, unless she
could show she was eligible for the "safety valve" because of her lack
of a previous criminal record.

Years earlier, she had issued two bad checks in the amounts of $45 and
$38.50. She pled guilty and received one year of probation.

Had Langmade received just one day less of probation, no criminal
history points would have been counted against her. Langmade then
would have been eligible for the "safety valve." Judge Magnuson
decided that it was unfair to increase her sentence from 70 months to
120 months just for those two, small, bad check convictions. He
sentenced her to 70 months.

The government appealed. During the appeal, Langmade's attorney
attempted to get the two check convictions expunged.

The government persuaded the state judge to deny the motion to
expunge.

The Eighth Circuit vacated the decision, and told Magnuson to
re-sentence her to 120 months; he wouldn't do it saying: " (A)
sentence of 10 years imprisonment under the circumstances of this case
is unconscionable and patently unjust.

Upon resentencing, Langmade will be sacrificed on the altar of
Congress' obsession with punishing crimes involving narcotics.

This obsession is, in part, understandable, for narcotics pose a
serious threat to the welfare of this country and its citizens.

This is one case in which a mandatory minimum sentence clearly does
not further the ends of justice.

Seventy months' imprisonment is more than adequate to punish
Langmade"

Another judge then sentenced her to 120 months.

The only way a defendant can be sentenced below a mandatory minimum is
if the government files a section 3553 motion saying the defendant has
given substantial assistance to the government in prosecuting other
people. This motion is seldom filed.

Mr. Larson's piece says, "the tough sentences are working because last
year 61,000 defendants in the United States admitted that they
committed crimes to get money to pay for drugs." The facts that we
see, usually from people under 25 are that: A friend got me to try it.
I loved it. I became an instant addict.

I spent all my money on drugs. I sold my car. I ran out of
assets.

My drug dealer said, "You get no more unless you want to sell drugs
for me." Since I was an addict and had to have it, I had no choice.

I started selling so that I could keep getting my daily
drugs.

Drugs have ruined my life.

Under the mandatory minimum law, our Courts often must put these
addicts in prison for 10 to 15 years.

The Larson piece goes on to say that the case of U.S. v. Yirkovsky,
259 F.3d 704 (8th Cir. 2001), which arose in the Northern District of
Iowa, is not a case that people should be using as a bad example for
long sentences.

Yirkovsky was living with Edith Turkington at her home. Instead of
paying rent, Yirkovsky agreed to lay new carpeting in the living room.
Yirkovsky found a .22-caliber round of ammunition under the old
carpet. Yirkovsky put the round in a small box and kept it in "his"
room. Subsequently, Turkington and Yirkovsky had a falling-out. The
police were called.

During the search, the police found the .22 round. Yirkovsky was
indicted for being a three-time felon in possession of ammunition. The
mandatory minimum penalty for this violation cannot be less than 15
years and cannot be suspended.

The judge had no choice but to give Yirkovsky 15 years.

Yirkovsky appealed; Yirkovsky's appeal was denied.

Larson's piece says that this result was appropriate under the
circumstances. The Eighth Circuit Court of Appeals assessed the matter
differently than Mr. Larson. They say in footnote four, "In our view
Yirkovsky's sentence of fifteen years is an extreme penalty ...
However, as we state above, our hands are tied in this matter by the
mandatory minimum sentence which Congress established" U.S. v.
Yirkovsky, 259 F.3d 704 (8th Cir. 2001) .

This group of distinguished jurists, most of whom are considered to be
conservative jurists, found Larson's conclusion, that the sentence was
appropriate, was dead wrong.

Justice Anthony M. Kennedy of the Supreme Court of the United States,
unlike Mr. Larson, has recognized the problems involved.

In a speech to the American Bar Association, Justice Kennedy stated
that, "Prisoners who have violated the law must be punished to
vindicate the law, to acknowledge the suffering of the victim, and to
deter future crimes."

Justice Kennedy further stated, "The nationwide inmate population
today is about 2.1 million.

In countries such as England, France, Italy, and Germany, the
incarceration is about one in 1,000 persons. In the United States, it
is one in 143. When it costs much more to incarcerate a prisoner than
to educate a child, we should take special care to ensure that we are
not incarcerating too many persons for too long. Our resources are
misspent, our punishments are too severe, our sentences are too long.
The Federal Sentencing Guidelines should be revised downward.

In too many cases, mandatory minimum sentences are unwise and
unjust."

Congress should not follow the Department of Justice's position as set
out by Mr. Larson. Congress should seize this opportunity to
reconsider sentencing guidelines and mandatory minimums and strive to
achieve the fundame ntal standards of fairness and effectiveness in
our nation's court systems that are so sorely lacking.

I have done nothing more than set out quotes by Judge Magnuson and the
Eighth Circuit Court of Appeals, a group who are looked upon, for the
most part, as conservatives. I have also quoted Justice Kennedy of the
United States Supreme Court who was appointed by the late President
Ronald Reagan. Please remember these are quotes from fine judges that
come to conclusions directly opposite those of Mr. Larson's op-ed piece.

Donald E. O'Brien is a senior judge for the United States District
Court, Northern District of Iowa.