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Judges Voice Anger Over Mandatory U.S. Sentences : Courts: Critics cite example of woman's 10-year term for first drug offense. But law has strong support.

August 21, 1993|JIM NEWTON | TIMES STAFF WRITER

Tonya Denise Drake is both criminal and victim--a criminal, she concedes, by virtue of her brief involvement in the crack cocaine trade; a victim, according to her family, lawyer and the judge who sent her to prison, of a cruel and indifferent federal sentencing system that is coming under increasing attack nationwide.

Her friends and family acknowledge that Drake, a 28-year-old welfare mother of four, broke the law when she agreed to mail a package for a man she barely knew and which turned out to contain crack cocaine. But even though Drake got all of $47.40 for the task, the congressionally approved mandatory minimum sentence for her offense is 10 years in federal prison.

There is no parole, so even with the modest federal credit for good behavior, Drake will not be out of prison until after the year 2000.

"This woman doesn't belong in prison for 10 years for what I understand she did," U.S. District Judge Richard A. Gadbois Jr. said in imposing her sentence. "That's just crazy, but there's nothing I can do about it."

With those remarks, Gadbois became another in an ever-growing number of federal judges to publicly take issue with the federal mandatory minimum sentences. Atty. Gen. Janet Reno also has questioned the laws, and this week told a group of federal judges meeting in Santa Barbara that she expects to send a report to Congress on the subject next month.

Critics of the mandatory minimums have powerful opponents, however. Many law enforcement leaders and legal scholars believe that mandatory minimums are an important deterrent to crime, and they say that any dilution of the minimum sentences would weaken the national commitment to fighting drugs and violent crime.

"The only way to get a real hammer effect on some crimes is to set a floor below which the judge cannot go," said former Atty. Gen. William P. Barr, a strong supporter of mandatory minimums. "I think that as a philosophical matter the punishment ought to fit the crime. The drug problem is a national scourge that has cost us more blood, treasure and national spirit than all our foreign wars."

Most members of Congress appear to agree, and efforts to scrap the mandatory minimums have made little progress so far. Still, even some backers of the mandatory minimums--including Rep. Charles E. Schumer (D-N.Y.), who chairs a key congressional subcommittee--have shown a willingness to amend a sentencing system that is sending scores of first-time drug offenders to long terms in crowded federal prisons.

The mandatory minimums have struck hardest at black defendants, who make up nearly 40% of all inmates serving mandatory sentences, according to one recent study. (The same study found that the overall federal prison population was 28% black. African-Americans make up 11.7% of the U.S. population.)

Because the minimum sentences apply only to a few kinds of offenses--almost all of them related to drugs or guns--the people who break those laws face far more rigid sentences than other offenders.

In the Rodney G. King beating case, for instance, Los Angeles Police Officer Laurence M. Powell and Sgt. Stacey C. Koon each received sentences of 2 1/2 years--substantially below federal guidelines--because there is no mandatory minimum for violating another person's civil rights. There is one for selling or transporting crack cocaine, however, and that's why Drake's four young children will grow up without her.

"The law stinks," Gadbois said in Drake's case. "I don't know a judge who thinks otherwise."

In fact, Gadbois is just one of several federal judges in Los Angeles who have publicly voiced anger about the mandatory minimums. U.S. District Judges Terry J. Hatter Jr. and J. Spencer Letts each have publicly attacked the mandatory minimums, and Hatter went so far as to confront Reno about the issue when she recently visited Los Angeles.

Hatter has bitterly criticized a sentencing system that he said gives more discretion to young prosecutors than it does to experienced judges. Hatter is a liberal appointed by President Jimmy Carter, but Gadbois and Letts are moderate conservatives appointed by President Ronald Reagan. Both are sharply critical of the mandatory minimums. At a recent sentencing, Letts said the system is "worse than barbaric, it is uncivilized."

Mandatory minimum sentences are hardly new. They have been on the books for centuries and cover a range of offenses, from refusing to testify before Congress to failing to report seaboard saloon purchases. But few of those laws are enforced, and the vast majority of mandatory minimum sentences are handed down for drug and weapons violations.

In the 1950s and 1960s, much scholarly attention was focused on judicial discretion in sentencing and rehabilitation of criminal offenders. That gave way more recently, however, to a harder-line approach, particularly with respect to drug crimes.

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