Powerless on the Bench

Kevin Sharp:

Early on, I sentenced a young man, Antonio, who was 27. He was charged as a felon in possession of a firearm. He had been convicted of two armed robberies at 17 years old. At 27, Antonio is doing what we all hope a criminal defendant does after being convicted: he gets a job. He is in contact with his family. He does not do drugs. He does not drink. But Antonio had been doing one thing that he should not have been.

Antonio was driving down the street and, without being too graphic, he and his girlfriend were engaged in an activity that caused him to cross slightly over the double-yellow line. The police saw it and pulled him over. The police suspected his girlfriend was a prostitute, so they split Antonio and his girlfriend up and asked them questions. The police realized based on her answers that she in fact was Antonio’s girlfriend. Then, the police said, “OK, we are going to let you go. Oh, by the way, do you mind if we search your car?” Antonio, forgetting that he had an unloaded pistol under the front seat of his car, responded, “No, go ahead.”

Antonio was charged with being a felon in possession of a firearm. Because he was convicted as an adult in his prior crimes, his mandatory minimum sentence was 15 years. I read his case and thought this could not be right. Fifteen years? What are “mandatory minimums”? I did not fully understand what they were at the time. I spent the next several days trying to figure out how to get around the minimum sentence — it cannot be done.

Regrettably, I did what I had to do. I sentenced Antonio to 15 years. I thought to myself, “What in the world are we doing? Why would the government take away my ability to fashion a fair sentence? I know what a judge is supposed to consider in determining how to fashion a sufficient sentence. What I have done is in no way, shape, or form an appropriate sentence.”

Several years later, I had the same conversation with myself. This time, the case involved a 22-year-old kid, Chris Young. He was caught up with a group of members of the Vice Lords, a gang known for running cocaine and crack through middle Tennessee. Chris was not a member of this gang. He was an aspiring rapper who would hang out with members of the Vice Lords because one of the gang members had a studio. He was occasionally asked to make crack, but he did not know how.

Chris was arrested as part of a 30-person indictment for drug conspiracy. Chris was such a minor player in the drug conspiracy — he did not even know how to make crack. I think the only reason the DEA arrested him was because he happened to be at a gas station when they took down the Vice Lords’ leader. He was at the wrong place with the wrong group at the wrong time. The only evidence showing Chris’s connection to the gang were tapes from their wiretaps where Chris is talking to the gang’s leader about how he cannot figure out why the crack he has cooked did not turn out right. The leader gets frustrated and finally says, “I’ll just come over and do it myself.” That was basically the extent of it.

The prosecutor told Chris, “You can plead guilty, and we will give you twelve years.” Chris is 22 and thinks, “12 years, no! I’m so minor in all of this, I will go to and win at trial.” His lawyer convinces him that he should not go to trial, given his two prior drug convictions (one for less than half a gram of crack, which is about a sugar packet of crack) and the penalty he could face if convicted again — a mandatory life sentence. At this point, the prosecutor changes his mind and says, “12 years was last week’s price — this week’s price is 22 years, and if you turn this down, next week’s price may be higher.” A 22-year-old, Chris thought, “22 years is life! I’ll take my chances at trial.” Only three people of this 30-person group arrested, by the way, went to trial. Everybody else pled guilty. At trial, these three people, who happened to also be the lowest members of this conspiracy, all got life in prison. Every single one of them. Yes, the Vice Lords were selling a lot of drugs, but not Chris, and not the other two defendants who also decided to go to trial. They all are behind bars for life.