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A common-sense judge

Inflexible sentencing guidelines
add to federal prison crowding

The Justice Department reports that the number of men and women behind bars increased by 83,294 last year, the second-biggest yearly increase in history, bringing the number of state and federal prisoners to just over 1 million - a new record. Counting the number of people on probation or parole, more than 5 million Americans are under some form of court supervision.

That figure has tripled since 1980.

If American prisons were stockholder-owned companies, they would be the darlings of Wall Street. Unfortunately, taxpayers are footing the bill, and they are getting precious little for their investment. While overall crime rates may be declining, Americans do not feel safer and violent offenders seem increasingly beastly.

The role of prisons must get more thoughtful consideration. Certainly, violent criminals must be confined, but the cold reality is the nation can't afford to continue putting so many people behind bars. The problem is particularly acute in the federal system, where new sentencing rules have increased the median prison time by 60 percent between 1986 and 1992. And, thanks to the "war on drugs, 60 percent of federal prisoners in 1993 were convicted of drtig-related crimes - up from 25 percent a decade earlier.

The combination of aggressive federal drug prosecutions and new sentencing rules is causing federal prisons to fill up with offenders serving sentences of 30 years or more for relatively minor drug offenses. And the situation has some federal judges near revolt.

Senior Circuit Judge Myron H. Bright of Fargo, N.D., is one. Bright, a federal judge for nearly three decades, sits on the U.S. Court of Appeals for the 8th Circuit, which includes Iowa. He's had it with the federal sentencing system.

In a recent case involving two Iowa men sentenced to roughly 29 years each in a drug-sales conspiracy, Bright filed a separate opinion declaring war on the federal sentencing rules, which factor in such things as prior records, the use of weapons, the amount of drugs seized, etc., to produce a sentence by a mathematical formula created by a federal sentencing commission.

Neither Larry Edward Hiveley, 48, nor Ansil Ezra Henry, 44, had serious prior records; indeed, they were deemed worthy of release on their word they would show up for trial. But, based on the amount of drugs seized and the presence of weapons in Hiveley's home, the sentencing formula dictated a 21-year sentence for Hively and 19 1/2 years for Henry. Bright concedes they deserve prison, but "I doubt that any reasonable judge would have sentenced these offenders to more than 10 years' incarceration, and most probably to less, given their limited criminal history."

By the time these two former Iowa farm boys are released, Bright noted, they will be candidates for the geriatric ward, and taxpayers will have spent close to a half-million dollars to imprison them for a decade longer than necessary. "But that is only an infinitesimal portion of the financial burden imposed by excessive sentences" in the federal system, Bright said. He calculates that the unnecessary imprisonment of minor drug offenders costs tax payers nearly $359 million a year, adding up to billions over time.

And it's not just the wasted resources, but wasted lives, too. "As an appellate judge, I have seen Draconian sentences meted out in drug cases where an offender has had no contact with any drugs but may only be a minor functionary in a drug conspiracy where heavy amounts of drugs could be involved." He cited a case where the offender merely "provided glassware usable to manufacture amphetamines"and was sentenced to serve 30 years.

"These unwise sentencing policies which put men and women in prison for years not only ruin lives of prisoners and often their family members, but also drain the American taxpayers of funds which can be measured in billions of dollars," Bright wrote. "In these times, the government, Congress and the president see the need to make drastic cuts in the federal budget.... This is the time to call a halt to the unnecessary and expensive cost of putting people in prison for a long time based on the mistaken notion that such an effort will win 'The War on Drugs.' If it is a war, society seems not to be winning, but losing."

Bright cited a survey showing that 86 percent of federal judges want the sentencing rules changed. And he said he intends to append his protest statement to every drug case where he believes it applies. "The public needs to know that unnecessary, harsh and unreasonable drug sentences serve to waste billions of dollars without doing much good for society. We have an unreasonable system."

May his words be heard.

Editorial, The Des Moines Register, Tuesday, Sept. 5, 1995, page 10A.