While it’s hardly new to have a federal judge spill his guts these days, it’s also not the norm for judges to put themselves on the line in full public view. To his credit, District of Connecticut Judge Stefan R. Underhill does so in a New York Times op-ed, in which he openly questions a sentence he imposed years ago.
In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since.
As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.
Before delving further, two things need to be understood. Judge Underhill’s reference to the hundreds of people he’s sentenced, and to the fact that he has wrestled with his 2006 sentencing decision, speaks well of him. But then, he was charged with sentencing human beings, a judicial responsibility, for which he was poorly prepared.
Clearly very smart, he was certainly the sort of lawyer to end up on the federal bench. But there is nothing in his background to suggest any competency, any understanding, that would enable him to sentence another human being to prison. And, while it’s clear that this wasn’t what he meant to say, the fact that he didn’t agonize over every sentence imposed is telling.
He was the enforcer for a brutal gang of drug dealers in Bridgeport, Conn., known as the Terminators, and had sold heroin, assaulted rival dealers and murdered a potential witness. But after a falling-out with the head of the gang, he turned over a stash house to the police and fled the state. When captured in 2001, he immediately confessed to the murder and later testified as a star witness for the prosecution.
So he was a bad dude who flipped as soon as it was his ass on the line. To most people. being a rat, dropping a dime on your enemy (who use to be your bestest friends before he became the enemy), isn’t considered a positive character trait. But this bad dude went into the government’s service. To Judge Underhill, that gave rise to his dilemma.
Thus arose my problem: He had committed horrible crimes, but he also seemed to be making an unusually sincere effort to atone for them. So which man was I sentencing? The murderer or the remorseful cooperator?
The prosecutor rewarded his cooperation by filing a so-called 5K motion, which allowed me to ignore the mandatory life sentence he otherwise would have faced. Still, after weighing the seriousness of his crimes, I sentenced him to 18 years, which was more time than even the prosecutor wanted.
What, in this mash of aggravating and mitigating factors, made Judge Underhill decide that 18 years, not 12, not 22, was the right length? He was freed from the Guidelines by the 5K1.1 letter, so it was left entirely to the court’s discretion. Why 18?
Long story short, Judge Underhill found himself near this fellow’s prison and paid him a visit. He pulled out all the usual certificates that nearly every prisoner collects. Lawyers see tons of them. Judges, apparently, not so much, so Judge Underhill found it special, that this guy over whom he antagonized now seemed to the judge not to need the next dozen years of imprisonment.
After I returned to my office, I contacted the prosecutor and his lawyer and encouraged them to find a way to get him released early. But they told me there was no straightforward way to shorten a federal inmate’s sentence, even if prison officials acknowledge that more jail time is a waste of time and money. So he had to stay in prison, at an annual cost of $30,000 to taxpayers.
Didn’t you know this? Had you ever practiced criminal defense before taking the bench to sentence human beings to prison, you would have known this. Yet, as a federal judge, you weren’t aware of the significance of the numbers that came out of your mouth, that there was no going back later if you blew it?
Congress should enact legislation that would allow every sentenced defendant one opportunity to petition his sentencing court for a reduction based on extraordinarily good conduct and rehabilitation in prison.
A second chance? For whom, Judge? Whether this defendant’s good conduct and rehab were “extraordinary,” or utterly banal, isn’t nearly as clear from this op-ed as it seems to Judge Underhill. What is clear is that a monstrously long sentence was imposed, seemingly without any appreciation of what it means, what it does, what purpose it serves.
A second chance to correct a mind-numbingly long sentence sounds like a great idea, and I applaud Judge Underhill’s willingness to come forward publicly in favor of it. But it’s impossible to ignore the length of the sentence imposed in the first place. It’s impossible to ignore the hundreds of other defendants sentence, who weren’t worthy of his agony.
There is one person, one function, left completely unmentioned in the discussion of the imposition of the original sentence. The defense lawyer. Did the defense lawyer not argue to the court that a far shorter sentence was more appropriate? Did he not tell the court about the defendant’s family? Did he not explain the remorse, the pointlessness of warehousing him for 18 years?
When a judge’s experience as a lawyer never touches criminal law, he would have no way of appreciating the implications of imposing outrageously long sentences. They are disconnected from reality, and defendants appear as one-dimensional vessels of evil, so that decades of imprisonment are shrugged off, rationalized by the simplistic embrace of “he deserved it.” He deserved something. Was “it,” was 18 years, what he “deserved”?
All the others sentenced, every one of them, is similarly worthy of a judge’s agony. Every one was a human being, had people who cared about them, did good things in their life as well as bad. Somebody at sentence told that to the judge, but it flew around the bench and faded into obscurity. After all, they’re just criminals, so who gives a damn. Eighteen years? That’s forever when it touches your life, but nothing when it’s some criminal’s life.
There are no second chances, Judge. That’s why you should have understood what it meant to lock a guy up for 18 years when you first imposed sentence. And if you can’t find it in you to agonize about the sentence you impose on every defendant, then you need to reconsider the propriety of your playing God with other people’s lives. Your insurance law background never prepared you to understand the harm you could cause.
It is good of you, Judge Underhill, to speak out against the callousness of the system. It’s unfortunate that you didn’t realize all this when you were given the first chance to not destroy a human being’s life. You should have gotten it right the first time.